(1) For the purpose of section 110A(5), the CMA finally decides whether to make a reference under section 22 , 33, 68B or 68C if—
(a) the CMA decides that the duty to make such a reference applies;
(b) the CMA accepts an undertaking under section 73;
(c) the CMA decides not to make such a reference (otherwise than because it has accepted an undertaking under section 73);
(d) the initial period for the purposes of section 34ZA expires without the CMA having complied with the duty under subsection (1) of that section;
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(f) the period permitted by section 73A for the CMA to make a decision required by subsection (2)(a) or (3) of that section expires without the CMA having made the decision.
(2) For the purpose of section 110A(5), the time when the CMA finally decides whether to make a reference under section 22 , 33, 68B or 68C is—
(a) in a case falling within subsection (1)(a), the making of the decision that the duty to make such a reference applies;
(b) in a case falling within subsection (1)(b), the acceptance of the undertaking;
(c) in a case falling within subsection (1)(c), the making of the decision not to make the reference;
(d) in a case falling within subsection (1)(d), the expiry of the initial period;
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(f) in a case falling within subsection (1)(f), the expiry of the period in question.
(3) For the purpose of section 110A(7), the Secretary of State finally decides whether to make a reference under section 45 or 62 if—
(a) the Secretary of State makes such a reference;
(b) the Secretary of State accepts an undertaking under paragraph 3 of Schedule 7;
(c) the Secretary of State decides not to make such a reference (otherwise than because of the acceptance of an undertaking under paragraph 3 of Schedule 7);
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) For the purpose of section 110A(7), the time when the Secretary of State finally decides whether to make a reference under section 45 or 62 is—
(a) in a case falling within subsection (3)(a), the making of the reference;
(b) in a case falling within subsection (3)(b), the acceptance of the undertaking;
(c) in a case falling within subsection (3)(c), the making of the decision not to make the reference;
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) Paragraph 7(8) to (10) of Schedule 7 applies for deciding if and when a reference under section 45(2) or (3) or 62(2) is finally determined for the purpose of section 110A(8) as it applies for deciding those questions for the purpose of paragraph 7 of Schedule 7.
(6) Paragraph 8(7) to (9) of Schedule 7 applies for deciding if and when a reference under section 45(4) or (5) or 62(3) is finally determined for the purpose of section 110A(8) as it applies for deciding those questions for the purpose of the definition of “relevant period” in paragraph 8(6) of that Schedule.
(1) A penalty imposed under section 110(1) or (1A) shall be of such amount as the appropriate authority considers appropriate.
(2) The amount may, in the case of a penalty imposed under section 110(1)(a), be a fixed amount, an amount calculated by reference to a daily rate or a combination of a fixed amount and an amount calculated by reference to a daily rate.
(3) The amount shall, in the case of a penalty imposed under section any of section 110(1)(b), (c) or (1A), be a fixed amount.
(4) A penalty imposed under section 110(1) or (1A) on a person who does not own or control an enterprise must not—
(a) in the case of a fixed amount, exceed £30,000;
(b) in the case of an amount calculated by reference to a daily rate, exceed £15,000 per day; and
(c) in the case of a fixed amount and an amount calculated by reference to a daily rate, exceed such fixed amount and such amount per day ....
(4A) A penalty imposed under section 110(1) or (1A) on any other person must not—
(a) in the case of a fixed amount, exceed 1% of the total value of the turnover (both in and outside the United Kingdom) of the enterprises owned or controlled by the person;
(b) in the case of an amount calculated by reference to a daily rate, for each day exceed 5% of the total value of the daily turnover (both in and outside the United Kingdom) of the enterprises owned or controlled by the person;
(c) in the case of a fixed amount and an amount calculated by reference to a daily rate, exceed such fixed amount and such amount per day.
(5) In imposing a penalty by reference to a daily rate—
(a) no account shall be taken of any days before the service of the provisional penalty notice under section 112(A1) on the person concerned; and
(b) unless the appropriate authority determines an earlier date (whether before or after the penalty is imposed), the amount payable shall cease to accumulate at the beginning of the earliest of the following days—
(i) the day on which the requirement of the notice concerned under section 109 is satisfied ...;...
(ii) ... the day which is the relevant day in the case in question for the purposes of section 110A.
(iii) in a case where the penalty is imposed in connection with the provision by the CMA of assistance to an overseas regulator (see Chapter 2 of Part 5 of the Digital Markets, Competition and Consumers Act 2024), the day on which the overseas regulator no longer requires that assistance.
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7A) The Secretary of State may by regulations amend subsection (4)(a) and (b) by substituting for either or both of the sums for the time being specified in those paragraphs such other sum or sums as the Secretary of State considers appropriate.
(8) Before making regulations under subsection (7A) the Secretary of State shall consult the CMA , OFCOM and such other persons as he considers appropriate.
(9) The Secretary of State may by regulations make provision for determining, for the purposes of this section—
(a) when an enterprise is to be treated as being controlled by a person;
(b) the turnover and daily turnover (both in and outside the United Kingdom) of an enterprise.
(10) Regulations under subsection (9)(b) may, in particular, make provision as to—
(a) the amounts which are, or which are not, to be treated as comprising an enterprise’s turnover or daily turnover;
(b) the date, or dates, by reference to which an enterprise’s turnover, or daily turnover, is to be determined.
(11) Regulations under subsection (9) may, in particular, make provision enabling the appropriate authority to determine matters of a description specified in the regulations (including any of the matters mentioned in paragraphs (a) and (b) of subsection (10)).
(A1) Before the appropriate authority imposes a penalty under section 110(1) or (1A), the authority must give the person concerned a provisional penalty notice.
(A2) A provisional penalty notice must—
(a) contain a draft of the final penalty notice the appropriate authority is minded to give to the person under subsection (1),
(b) invite the making of representations by the person to the authority about the proposed final penalty notice, and
(c) specify the means by which, and the time by which, such representations must be made.
(A3) The appropriate authority must have regard to any representations received in accordance with a provisional penalty notice before imposing a penalty under section 110(1) or (1A) (and accordingly may not impose such a penalty before the time for the person concerned to make representations to the authority in accordance with that notice has expired).
(1) As soon as practicable after imposing a penalty under section 110(1) or (1A), the appropriate authority must give the person concerned a final penalty notice.
(2) The final penalty notice shall state—
(a) that the appropriate authority has imposed a penalty on the person concerned;
(b) whether the penalty is of a fixed amount, of an amount calculated by reference to a daily rate or of both a fixed amount and an amount calculated by reference to a daily rate;
(c) the amount or amounts concerned and, in the case of an amount calculated by reference to a daily rate, the day on which the amount first starts to accumulate and the day or days on which it might cease to accumulate;
(d) the act or omission in question which the appropriate authority considers gave it the power to impose the penalty;
(e) any other facts which the appropriate authority considers justify the imposition of a penalty and the amount or amounts of the penalty;
(f) the manner in which, and place at which, the penalty is required to be paid to the appropriate authority;
(g) the date or dates, no earlier than the end of the relevant period beginning with the date of service of the notice on the person concerned, by which the penalty or (as the case may be) different portions of it are required to be paid;
(h) that the penalty or (as the case may be) different portions of it may be paid earlier than the date or dates by which it or they are required to be paid; and
(i) that the person concerned has the right to apply under subsection (3) below or to appeal under section 114 and the main details of those rights.
(3) The person against whom the penalty was imposed may, within 14 days of the date of service on him of a notice under subsection (1), apply to the appropriate authority for it to specify a different date or (as the case may be) different dates by which the penalty or (as the case may be) different portions of it are to be paid.
(3A) A provisional penalty notice is given by serving a copy of the notice on the person on whom the appropriate authority is minded to impose the penalty.
(4) A final penalty notice shall be given by—
(a) serving a copy of the notice on the person on whom the penalty was imposed; and
(b) publishing the notice.
(5) In this section “relevant period” means the period of 28 days mentioned in subsection (3) of section 114 or, if another period is specified by the Secretary of State under that subsection, that period.
(1) If the whole or any portion of a penalty is not paid by the date by which it is required to be paid, the unpaid balance from time to time shall carry interest at the rate for the time being specified in section 17 of the Judgments Act 1838 (c. 110).
(2) Where an application has been made under section 112(3), the penalty shall not be required to be paid until the application has been determined, withdrawn or otherwise dealt with.
(3) If a portion of a penalty has not been paid by the date required for it, the appropriate authority may, where it considers it appropriate to do so, require so much of the penalty as has not already been paid (and is capable of being paid immediately) to be paid immediately.
(4) Any sums received by the appropriate authority in or towards the payment of a penalty, or interest on a penalty, shall be paid into the Consolidated Fund.
(1) This section applies if a person on whom a penalty is imposed under section 110(1) or (1A) is aggrieved by—
(a) the imposition or nature of the penalty;
(b) the amount or amounts of the penalty; or
(c) the date by which the penalty is required to be paid or (as the case may be) the different dates by which portions of the penalty are required to be paid.
(2) The person aggrieved may apply to the Competition Appeal Tribunal.
(3) If a copy of the notice under section 112(1) was served on the person on whom the penalty was imposed, the application to the Competition Appeal Tribunal shall, subject to subsection (4), be made within—
(a) the period of 28 days starting with the day on which the copy was served on the person concerned; or
(b) such other period as the Secretary of State may by order specify.
(4) If the application relates to a decision of the appropriate authority on an application by the person on whom the penalty was imposed under section 112(3), the application to the Competition Appeal Tribunal shall be made within—
(a) the period of 28 days starting with the day on which the person concerned is notified of the decision; or
(b) such other period as the Secretary of State may by order specify.
(5) On an application under this section, the Competition Appeal Tribunal may—
(a) quash the penalty;
(b) substitute a penalty of a different nature or of such lesser amount or amounts as the Competition Appeal Tribunal considers appropriate; or
(c) in a case falling within subsection (1)(c), substitute for the date or dates imposed by the appropriate authority an alternative date or dates;
if it considers it appropriate to do so.
(5A) In the case of a penalty imposed on a person by the CMA or OFCOM, in considering what is appropriate for the purposes of subsection (5) the Competition Appeal Tribunal must have regard to the relevant guidance.
(6) The Competition Appeal Tribunal shall not substitute a penalty of a different nature under subsection (5)(b) unless it considers that the person on whom the penalty is imposed will, or is likely to, pay less under the substituted penalty than he would have paid under the original penalty.
(7) Where an application has been made under this section—
(a) the penalty shall not be required to be paid until the application has been determined, withdrawn or otherwise dealt with; and
(b) the appropriate authority may agree to reduce the amount or amounts of the penalty in settlement of the application.
(8) Where the Competition Appeal Tribunal substitutes a penalty of a different nature or of a lesser amount or amounts it may require the payment of interest on the substituted penalty at such rate or rates, and from such date or dates, as it considers appropriate.
(9) Where the Competition Appeal Tribunal specifies as a date by which the penalty, or a portion of the penalty, is to be paid a date before the determination of the application under this section it may require the payment of interest on the penalty, or portion, from that date at such rate as it considers appropriate.
(10) An appeal lies to the appropriate court—
(a) on a point of law arising from a decision of the Tribunal in proceedings under this section; or
(b) from a decision of the Tribunal in such proceedings as to the amount or amounts of a penalty.
(11) An appeal under subsection (10)—
(a) may be brought by a party to the proceedings before the Tribunal; and
(b) requires the permission of the Tribunal or the appropriate court.
(12) In this section
(a) “the appropriate court” means the Court of Appeal or, in the case of Tribunal proceedings in Scotland, the Court of Session.
(b) “the relevant guidance” means—
(i) in the case of a penalty imposed on a person by the CMA, the statement of policy which was most recently published under section 116 at the time when the act or omission concerned occurred;
(ii) in the case of a penalty imposed on a person by OFCOM, the statement of policy which was most recently published under section 392 of the Communications Act 2003 (penalties imposed by OFCOM) at the time when the act or omission concerned occurred.
Where a penalty imposed under section 110(1) or (1A), or any portion of such a penalty, has not been paid by the date on which it is required to be paid and—
(a) no application relating to the penalty has been made under section 114 during the period within which such an application may be made, or
(b) any such application which has been made has been determined, withdrawn or otherwise dealt with,
the appropriate authority may recover from the person on whom the penalty was imposed any of the penalty and any interest which has not been paid; and in England and Wales and Northern Ireland such penalty and interest may be recovered as a civil debt due to the appropriate authority.
(1) The CMA must prepare and publish a statement of policy in relation to—
(a) the imposition of penalties under section 110, and
(b) the enforcement of notices under section 109.
(2) The statement shall, in particular, include a statement about the considerations relevant to the determination of the nature and amount of any penalty imposed under section 110(1) or (1A).
(3) The CMA may revise its statement of policy and, where it does so, it shall publish the revised statement.
(4) The CMA shall consult the Secretary of State and such other persons as it considers appropriate when preparing or revising its statement of policy.
(5) A statement or revised statement of policy may not be published under this section without the approval of the Secretary of State.
(1) A person (“P”) commits an offence if the person intentionally alters, suppresses or destroys any document which P has been required to produce by a notice under section 109.
(2) But P does not commit an offence under subsection (1) by reason of any act or omission if the CMA has proceeded against P under section 110(1) or (1A) in relation to that act or omission.
(3) A person who commits an offence under subsection (1) is liable—
(a) on summary conviction, to a fine not exceeding the statutory maximum;
(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.
(4) In this section—
(a) the reference to the production of a document includes a reference to the production of a legible and intelligible copy of information recorded otherwise than in legible form;
(b) the reference to suppressing a document includes a reference to destroying the means of reproducing information recorded otherwise than in legible form.
(1) A person commits an offence if—
(a) he supplies any information to the appropriate authority in connection with any of their functions under this Part;
(b) the information is false or misleading in a material respect; and
(c) he knows that it is false or misleading in a material respect or is reckless as to whether it is false or misleading in a material respect.
(2) A person commits an offence if he—
(a) supplies any information to another person which he knows to be false or misleading in a material respect; or
(b) recklessly supplies any information to another person which is false or misleading in a material respect;
knowing that the information is to be used for the purpose of supplying information to the appropriate authority in connection with any of their functions under this Part.
(2A) A person does not commit an offence under subsection (1) or (2) by reason of any act or omission if the appropriate authority has proceeded against the person under section 110(1) or (1A) in relation to that act or omission.
(3) A person who commits an offence under subsection (1) or (2) shall be liable—
(a) on summary conviction, to a fine not exceeding the statutory maximum;
(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.
(1) Subsection (2) applies where the Secretary of State is under a duty to publish—
(a) a report of the CMA under section 44 or 61;
(aa) a report of OFCOM under section 44A or 61A;...
(b) a report of the CMA under section 50 or 65 , or
(c) a report of the CMA under section 70B.
(2) The Secretary of State may exclude a matter from the report concerned if he considers that publication of the matter would be inappropriate.
(3) In deciding what is inappropriate for the purposes of subsection (2) the Secretary of State shall have regard to the considerations mentioned in section 244.
(4) The body which has prepared the report shall advise the Secretary of State as to the matters (if any) which it considers should be excluded by him under subsection (2).
(5) References in sections 38(4) and 107(11) to the giving or laying of a report of the CMA shall be construed as references to the giving or laying of the report as published.
(1) Subsection (2) applies where, on a reference to the CMA under this Part, a member of a group constituted in connection with the reference ..., disagrees with any decisions contained in the report of the CMA under this Part as the decisions of the CMA.
(2) The report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing.
119A Other general functions of OFCOM in relation to this Part
(1) OFCOM have the function of obtaining, compiling and keeping under review information about matters relating to the carrying out of their functions under this Part.
(2) That function is to be carried out with a view to (among other things) ensuring that OFCOM have sufficient information to take informed decisions and to carry out their other functions effectively.
(3) In carrying out that function OFCOM may carry out, commission or support (financially or otherwise) research.
(4) Section 3 of the Communications Act 2003 (general duties of OFCOM) shall not apply in relation to functions of OFCOM under this Part.
119B Monitoring role for CMA in relation to media mergers
(1) The CMA has the function of obtaining, compiling and keeping under review information about matters which may be relevant to the Secretary of State in deciding whether to give a special intervention notice mentioning a consideration specified in section 58(2A) to (2C).
(2) That function is to be carried out with a view to (among other things) ensuring that the Secretary of State is aware of cases where, in the opinion of the CMA, he might wish to consider giving such a notice.
(3) That function does not extend to obtaining, compiling or keeping under review information with a view to carrying out a detailed analysis in each case of the operation in relation to that case of the consideration specified in section 58(2A) to (2C).
(1) Any person aggrieved by a decision mentioned in subsection (1A) may apply to the Competition Appeal Tribunal for a review of that decision.
(1A) The decisions are—
(a) a decision of the CMA, OFCOM or the Secretary of State under this Part in connection with a reference or possible reference in relation to a relevant merger situation or a special merger situation;
(aa) a decision of the CMA or the Secretary of State in connection with a foreign state newspaper merger situation;
(b) a decision of the CMA under this Part in connection with transferred EU merger commitments.
(c) a decision of the CMA or the Secretary of State for the purposes of Chapter 2 of Part 5 of the Digital Markets, Competition and Consumers Act 2024 in connection with a request from an overseas regulator (within the meaning of that Chapter) for the CMA to assist the regulator in carrying out functions of the regulator which correspond or are similar to the functions of the CMA under this Part.
(2) For this purpose “decision”—
(a) does not include a decision to impose a penalty under section 94AA(1) or 110(1) or (1A); but
(b) includes a failure to take a decision permitted or required by
(i) this Part in connection with a reference or possible reference or transferred EU merger commitments
(ia) Chapter 3A of this Part;
(ii) Chapter 2 of Part 5 of the Digital Markets, Competition and Consumers Act 2024 in connection with a request from an overseas regulator (within the meaning of that Chapter) for the CMA to assist the regulator in carrying out functions of the regulator which correspond or are similar to the functions of the CMA under this Part.
(3) Except in so far as a direction to the contrary is given by the Competition Appeal Tribunal, the effect of the decision is not suspended by reason of the making of the application.
(4) In determining such an application the Competition Appeal Tribunal shall apply the same principles as would be applied by a court on an application for judicial review.
(5) The Competition Appeal Tribunal may—
(a) dismiss the application or quash the whole or part of the decision to which it relates; and
(b) where it quashes the whole or part of that decision, refer the matter back to the original decision maker with a direction to reconsider and make a new decision in accordance with the ruling of the Competition Appeal Tribunal.
(6) An appeal lies on any point of law arising from a decision of the Competition Appeal Tribunal under this section to the appropriate court.
(7) An appeal under subsection (6) requires the permission of the Tribunal or the appropriate court.
(8) In this section—
“the appropriate court” means the Court of Appeal or, in the case of Tribunal proceedings in Scotland, the Court of Session; and
“Tribunal rules” has the meaning given by section 15(1).
(1) The Secretary of State may by order require the payment to him or the CMA of such fees as may be prescribed by the order in connection with the exercise by the Secretary of State, the CMA and OFCOM of their functions under or by virtue of this Part, . . . and sections 32 to 34 of, and Schedule 4ZA to, the Water Industry Act 1991 (c. 56).
(2) An order under this section may, in particular, provide for fees to be payable—
(a) in respect of a merger notice; or
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) on the occurrence of any event specified in the order.
(3) The events that may be specified in an order under this section by virtue of subsection (2)(c) include, in particular—
(a) the decision by the CMA in relation to a possible reference under section 22 , 33, 68B or 68C that it is or may be the case that a relevant merger situation has been created or (as the case may be) that arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation;
(b) the decision by the Secretary of State in relation to a possible reference under section 45 that it is or may be the case that a relevant merger situation has been created or (as the case may be) that arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation;
(c) the decision by the Secretary of State in relation to a possible reference under section 62 that—
(i) it is or may be the case that a special merger situation has been created or (as the case may be) that arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a special merger situation; and
(ii) one or more than one consideration mentioned in the special intervention notice is relevant to a consideration of the special merger situation concerned; and
(d) the decision by the CMA in relation to a possible reference under section 32 of the Act of 1991 that it is or may be the case that arrangements are in progress which, if carried into effect, will result in a merger of any two or more water enterprises or that such a merger has taken place otherwise than as a result of the carrying into effect of arrangements that have been the subject of a reference by virtue of paragraph (a) of that section.
(4) An order under this section may, in particular, contain provision—
(a) for ascertaining the persons by whom fees are payable;
(b) specifying whether any fee is payable to the Secretary of State or the CMA;
(c) for the amount of any fee to be calculated by reference to matters which may include—
(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(ii) . . . , the value of the turnover of the enterprises concerned;
(d) as to the time when any fee is to be paid; and
(e) for the repayment by the Secretary of State or the CMA of the whole or part of any fee in specified circumstances.
(5) For the purposes of subsection (4)(c)(ii) the turnover of an enterprise shall be determined in accordance with such provisions as may be specified in an order under this section.
(6) Provision made by virtue of subsection (5) may, in particular, include provision—
(a) as to the amounts which are, or which are not, to be treated as comprising an enterprise’s turnover;
(b) as to the date or dates by reference to which an enterprise’s turnover is to be determined;
(c) restricting the turnover to be taken into consideration to turnover which has a connection of a particular description with the United Kingdom.
(7) An order under this section may, in particular, in connection with provisions of the kind mentioned in subsection (5) make provision enabling the Secretary of State or the CMA to determine matters of a description specified in the order (including any of the matters mentioned in paragraphs (a) to (c) of subsection (6)).
(8) In determining the amount of any fees to be prescribed by an order under this section, the Secretary of State may take into account all costs incurred by him and by the CMA in respect of the exercise by him, the CMA and OFCOM of their respective functions under or by virtue of this Part . . . and sections 32 to 34 of, and Schedule 4ZA to, the Act of 1991.
(9) Fees paid to the Secretary of State or the CMA under this section shall be paid into the Consolidated Fund.
(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
123 Power to alter conditions for a relevant merger situation
(1) The Secretary of State may by order amend or replace the conditions which determine for the purposes of this Part whether a relevant merger situation has been created.
(2) The Secretary of State shall not exercise his power under subsection (1)—
(a) to amend or replace the conditions mentioned in paragraphs (a) and (b) of subsection (1) of section 23;
(b) to amend or replace the condition mentioned in paragraph (a) of subsection (2) of that section.
(c) to amend or replace the condition mentioned in paragraph (a) of subsection (4C) of that section.
(3) In exercising his power under subsection (1) to amend or replace the condition mentioned in paragraph (b) of subsection (2) of section 23 or any condition which for the time being applies instead of it, the Secretary of State shall, 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 which results from the enterprises concerned having ceased to be distinct.
(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.
(4) Before making an order under this section the Secretary of State shall consult the CMA.
(5) An order under this section may provide for the delegation of functions to the decision-making authority.
(1) Any power of the Secretary of State to make an order or regulations under this Part shall be exercisable by statutory instrument.
(2) Any power of the Secretary of State to make an order or regulations under this Part—
(a) may be exercised so as to make different provision for different cases or different purposes; and
(b) includes power to make such incidental, supplementary, consequential, transitory, transitional or saving provision as the Secretary of State considers appropriate.
(3) The power of the Secretary of State under section 34, 59(6A) , 70G or 123 (including that power as extended by subsection (2) above) , or paragraph 15 of Schedule 6B, may be exercised by modifying any enactment comprised in or made under this Act, or any other enactment.
(4) The power of the Secretary of State under section 34ZC(6), 40(8), 41B(6), 44(11), 52(8) (including that enactment as applied by section 65(3)), 58(3), ... 73B(6)... or 102 as extended by subsection (2) above may be exercised by modifying any enactment comprised in or made under this Act, or any other enactment.
(5) ... An order made by the Secretary of State under section 28 (including that enactment as applied by section 42(5) and 59(5)), 34ZC(6), 40(8), 41B(6), 52(8) (including that enactment as applied by section 65(3)), 59(6A)(a), 70C, 73B(6) ..., 114(3)(b) or (4)(b) or 121 or Schedule 7 is subject to the negative procedure.
(5A) Regulations made under section 68A, 94AB(9) or 111(9) are subject to the negative procedure.
(6) An order made by the Secretary of State under section 34, 44(11), section 59(6A)(b), ... 102, 123 or 128(6) is subject to the affirmative procedure.
(6A) Regulations made under section 70G, 94AB(7) or 111(7A), or paragraph 15 of Schedule 6B, are subject to the affirmative procedure.
(6B) Any provision that may be made by order or regulations under this Part subject to the negative procedure may instead be made by order or regulations subject to the affirmative procedure.
(7) An order made by the Secretary of State under section 58(3) shall be laid before Parliament after being made and shall cease to have effect unless approved, within the period of 28 days beginning with the day on which it is made, by a resolution of each House of Parliament.
(8) In calculating the period of 28 days mentioned in subsection (7), no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.
(9) If an order made by the Secretary of State ceases to have effect by virtue of subsection (7), any modification made by it of an enactment is repealed (and the previous enactment revived) but without prejudice to the validity of anything done in connection with that modification before the order ceased to have effect and without prejudice to the making of a new order.
(10) If, apart from this subsection, an order made by the Secretary of State under section 58(3) or 70G, or paragraph 15 of Schedule 6B would be treated for the purposes of the standing orders of either House of Parliament as a hybrid instrument, it shall proceed in that House as if it were not such an instrument.
(11) Where orders or regulations under this Part are subject to “the affirmative procedure”, the orders or 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.
(12) Where orders or 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.
(1) Where an offence under this Part committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—
(a) a director, manager, secretary or other similar officer of the body corporate, or
(b) a person purporting to act in such a capacity,
he as well as the body corporate commits the offence and shall be liable to be proceeded against and punished accordingly.
(2) Where the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.
(3) Where an offence under this Part is committed by a Scottish partnership and is proved to have been committed with the consent or connivance of a partner, or to be attributable to any neglect on the part of a partner, he as well as the partnership commits the offence and shall be liable to be proceeded against and punished accordingly.
(4) In subsection (3) “partner” includes a person purporting to act as a partner.
126 Service of documents by the CMA, OFCOM or the Secretary of State
(1) This section applies in relation to any document required or authorised under this Part to be served on a person by the CMA, OFCOM or the Secretary of State.
(2) The document may be served 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 document may be served on a body corporate by giving it to any officer of that body.
(4) A document may be served on a partnership by giving it to any partner or a person who has the control or management of the partnership business.
(5) A document may be served on an unincorporated body or association (other than a partnership) by giving it to any member of the governing body of the association.
(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 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 an unincorporated body or association, the principal office of the body or association;
(d) in a case where none of paragraphs (a) to (c) apply, any address at which the CMA, OFCOM or the Secretary of State believes, on reasonable grounds, that the document 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, OFCOM or the Secretary of State believes, on reasonable grounds, that the document 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 body 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 serving a document on a person.
(1) Associated persons, and any bodies corporate which they or any of them control, shall be treated as one person—
(a) for the purpose of deciding under section 26 whether any two enterprises have been brought under common ownership or common control;
(aa) for the purposes of section 58(2C); ...
(ab) for the purposes of section 70A(3);
(b) for the purpose of determining what activities are carried on by way of business by any one person so far as that question arises in connection with paragraph 13(2) of Schedule 8.
(2) Subsection (1) shall not exclude from section 26 any case which would otherwise fall within that section.
(3) A reference under section 22, 33, 45 , 62, 68B or 68C (whether or not made by virtue of this section) may be framed so as to exclude from consideration, either altogether or for a specified purpose or to a specified extent, any matter which, apart from this section, would not have been taken into account on that reference.
(4) For the purposes of this section—
(a) any individual and that individual’s spouse , civil partner or partner and any relative, or spouse or partner of a relative, of that individual or of that individual’s spouse , civil partner or partner;
(b) any person in his capacity as trustee of a settlement and the settlor or grantor and any person associated with the settlor or grantor;
(c) persons carrying on business in partnership and the spouse , civil partner or partner and relatives of any of them; or
(d) two or more persons acting together to secure or exercise control of a body of persons corporate or unincorporate or to secure control of any enterprise or assets,
shall be regarded as associated with one another.
(5) The reference in subsection (1) to bodies corporate which associated persons control shall be construed in accordance with section 26(3) and (4).
(6) In this section “relative” means a brother, sister, uncle, aunt, nephew, niece, lineal ancestor or descendant (the stepchild of any person, or anyone adopted by a person, whether legally or otherwise, as his child being regarded as a relative or taken into account to trace a relationship in the same way as that person’s child); and references to a spouse , civil partner or partner shall include a former spouse , civil partner or partner.
128 Supply of services and market for services etc.
(1) References in this Part to the supply of services shall be construed in accordance with this section; and references in this Part to a market for services and other related expressions shall be construed accordingly.
(2) The supply of services does not include the provision of services under a contract of service or of apprenticeship whether it is express or implied and (if it is express) whether it is oral or in writing.
(3) The supply of services includes—
(a) performing for gain or reward any activity other than the supply of goods;
(b) rendering services to order;
(c) the provision of services by making them available to potential users.
(4) The supply of services includes making arrangements for the use of computer software or for granting access to data stored in any form which is not readily accessible.
(5) The supply of services includes making arrangements by means of a relevant agreement (within the meaning of paragraph 17 of Schedule 3A to the Communications Act 2003 (the electronic communications code)) for sharing the use of electronic communications apparatus.
(6) The supply of services includes permitting or making arrangements to permit the use of land in such circumstances as the Secretary of State may by order specify.
(1) In this Part, unless the context otherwise requires—
“action” includes omission; and references to the taking of action include references to refraining from action;
“agreement” means any agreement or arrangement, in whatever way and whatever form it is made, and whether it is, or is intended to be, legally enforceable or not;
“business” includes a professional practice and includes any other undertaking which is carried on for gain or reward or which is an undertaking in the course of which goods or services are supplied otherwise than free of charge;
“change of circumstances” includes any discovery that information has been supplied which is false or misleading in a material respect;
...
“consumer” means any person who is—
a person to whom goods are or are sought to be supplied (whether by way of sale or otherwise) in the course of a business carried on by the person supplying or seeking to supply them; or
a person for whom services are or are sought to be supplied in the course of a business carried on by the person supplying or seeking to supply them;
and who does not receive or seek to receive the goods or services in the course of a business carried on by him;
“customer” includes a customer who is not a consumer;
...
“enactment” includes an Act of the Scottish Parliament, Northern Ireland legislation and an enactment comprised in subordinate legislation, and includes an enactment whenever passed or made;
“enterprise” means the activities, or part of the activities, of a business;
“the European Merger Regulations” means Council Regulation (EEC) No. 4064/89 of 21st December 1989 on the control of concentrations between undertakings as amended by Council Regulation (EC) No. 1310/97 of 30th June 1997;
“foreign state intervention notice” means a notice under section 70A(1);
“foreign state newspaper merger situation” is to be interpreted in accordance with section 70A(3);
“goods” includes buildings and other structures, and also includes ships, aircraft and hovercraft;
“modify” includes amend or repeal;
“notice” means notice in writing;
“price” includes any charge or fee (however described);
“subordinate legislation” has the same meaning as in the Interpretation Act 1978 (c. 30) and also includes an instrument made under an Act of the Scottish Parliament and an instrument made under Northern Ireland legislation;
“subsidiary” has the meaning given by section 1159 of the Companies Act 2006 (c. 6);
“supply”, in relation to the supply of goods, includes supply by way of sale, lease, hire or hire-purchase, and, in relation to buildings or other structures, includes the construction of them by a person for another person;
“the UK financial system” means the financial system in the United Kingdom; and
“United Kingdom national” means an individual who is—
a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen;
a person who under the British Nationality Act 1981 (c. 61) is a British subject; or
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.
(2) For the purposes of this Part any two bodies corporate are interconnected if—
(a) one of them is a body corporate of which the other is a subsidiary; or
(b) both of them are subsidiaries of one and the same body corporate;
and in this Part “interconnected bodies corporate” shall be construed accordingly and “group of interconnected bodies corporate” means a group consisting of two or more bodies corporate all of whom are interconnected with each other.
(3) References in this Part to a person carrying on business include references to a person carrying on business in partnership with one or more other persons.
(4) Any duty to publish which is imposed on a person by this Part shall, unless the context otherwise requires, be construed as a duty on that person to publish in such manner as he considers appropriate for the purpose of bringing the matter concerned to the attention of those likely to be affected by it.
In this Part, the expressions listed in the left-hand column have the meaning given by, or are to be interpreted in accordance with, the provisions listed in the right-hand column.
Expression | Provision of this Act
Action (and the taking of action) | Section 129(1)
Adverse public interest finding | Section 54(3)
Agreement | Section 129(1)
Anti-competitive outcome | Section 35(2)
Broadcasting | Section 44(9)
Business (and carrying on business) | Section 129(1) and (3)
Change of circumstances | Section 129(1)
. . . | . . .
The CMA | Section 273
. . . | . . .
Consumer | Section 129(1)
Customer | Section 129(1)
Date of reference | Section 39(9)
The decision-making authority | Section 22(7)
. . . | Section 129(1)
Enactment | Section 129(1)
Energy network enterprise | Section 68A
Energy network merger | Section 68A
Enforcement order | Section 86(6)
Enforcement undertaking | Section 89(2)
Enterprise | Section 129(1)
Enterprises ceasing to be distinct | Section 26(1)
European Merger Regulations | Section 129(1)
Fast-track reference request | section 34ZD(3)
Final determination of matter to which intervention notice relates | Section 43(4) and (5)
Final determination of matter to which special intervention notice relates | Section 60(4) and (5)
Final determination of reference under section 22 , 33, 68B or 68C | Section 79(1) and (2)
Foreign state intervention notice | Section 70A (1)
Foreign state newspaper merger situation | Section 70A (3)
Goods | Section 129(1)
Interconnected bodies corporate (and a group of interconnected bodies corporate) | Section 129(2)
Intervention notice | Section 42(2)
Market for goods or services | Section 22(6)
Market in the United Kingdom | Section 22(6)
Media enterprise | Section 58A(1)
Media public interest consideration | Section 44(8)
Merger notice | Section 96(2)
Modify | Section 129(1)
News media | Section 58(2F)
News media enterprise | Paragraph 20A(5A) of Schedule 8
News programme | Section 58(2G)
Newspaper | Section 44(10)
Newspaper enterprise | Section 58A(3)
Notice | Section 129(1)
Notified arrangements | Section 96(6)
OFCOM | Section 43(6)
. . . | . . .
Orders under section 81 | Section 81(6)
Orders under paragraph 2 of Schedule 7 | Paragraph 2(7) of Schedule 7
The period for considering a merger notice | Sections 97 and 98
Price | Section 129(1)
Public interest consideration | Section 42(3)
Public interest consideration being finalised | Section 42(8)
Publish | Section 129(4)
References under section 22, 33, 45 , 62, 68B or 68C | Sections 37(2) (including as applied by Schedule 5A), 49(1), 56(8) and 64(2)
Relevant customer benefit | Section 30
Relevant merger situation | Section 23 (as read with other enactments)
Reports of the CMA | Section 118(5)
Special intervention notice | Section 59(2)
Special merger situation | Section 59(3)
Subordinate legislation | Section 129(1)
Subsidiary | Section 129(1)
Supply (in relation to the supply of goods) | Section 129(1)
The supply of services (and a market for services etc.) | Section 128
Transferred EU merger commitments | Section 95A(6)
The turnover in the United Kingdom of an enterprise | Section 28(2) (including as applied by Schedule 5A)
The UK financial system | Section 129(1)
Undertakings under section 80 | Section 80(6)
. . . | . . .
United Kingdom national | Section 129(1)
Working day | Section 129(1)
(1) Where the CMA is proposing to carry out its functions under section 5 in relation to a matter for the purposes mentioned in subsection (2), the CMA must publish a notice under this section (referred to in this Part as a “market study notice”).
(2) The purposes are—
(a) to consider the extent to which a matter in relation to the acquisition or supply of goods or services of one or more than one description in the United Kingdom has or may have effects adverse to the interests of consumers; and
(b) to assess the extent to which steps can and should be taken to remedy, mitigate or prevent any such adverse effects.
(3) A market study notice shall, in particular, specify—
(a) the matter in relation to which the CMA is proposing to carry out its functions under section 5;
(b) the period during which representations may be made to the CMA in relation to the matter; and
(c) the dates by which the CMA is required to comply with the requirements imposed on it by sections 131A and 131B.
(1) The CMA may, subject to subsection (4), 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 reasonable grounds for suspecting that any feature, or combination of features, of a market in the United Kingdom for goods or services prevents, restricts or distorts competition in connection with the supply or acquisition of any goods or services in the United Kingdom or a part of the United Kingdom.
(2) For the purposes of this Part any reference to a feature of a market in the United Kingdom for goods or services shall be construed as a reference to—
(a) the structure of the market concerned or any aspect of that structure;
(b) any conduct (whether or not in the market concerned) of one or more than one person who supplies or acquires goods or services in the market concerned; or
(c) any conduct relating to the market concerned of customers of any person who supplies or acquires goods or services.
(2A) In a case where the feature or each of the features concerned falls within subsection (2)(b) or (c), a reference under subsection (1) may be made in relation to more than one market in the United Kingdom for goods or services.
(3) In subsection (2) “conduct” includes any failure to act (whether or not intentional) and any other unintentional conduct.
(4) No reference shall be made under this section if—
(a) the making of the reference is prevented by section 156(A1) or (1); or
(b) a reference has been made under section 132 or 140A(6) in relation to the same matter but has not been finally determined.
(5) References in this Part to a market investigation reference being finally determined shall be construed in accordance with section 183(3) to (6).
(6) In this Part—
“cross-market reference” means a reference under this section which falls within subsection (2A) or a reference under section 132 which falls within subsection (3A) of that section (and see section 140A);
“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;
“market investigation reference” means a reference under this section or section 132 or 140A(6);
“ordinary reference” means a reference under this section or section 132 which is not a cross-market reference (and see section 140A);
and references to a market for goods or services include references to a market for goods and services.
131A Decisions about references under section 131: consultation
(1) This section applies to a case where the CMA has published a market study notice and—
(a) the CMA is proposing to make a reference under section 131 in relation to the matter specified in the notice; or
(b) a representation has been made to the CMA within the period specified in the notice under section 130A(3)(b) to the effect that such a reference should be made but the CMA is proposing not to make such a reference.
(2) The CMA shall—
(a) publish notice of the proposal concerned; and
(b) consult the relevant persons about the proposal, in such manner as it considers practicable, before deciding whether to make a reference.
(3) The CMA may, for the purposes of subsection (1), ignore any representation which it considers to be frivolous or vexatious.
(4) For the purposes of subsection (2), a person is a “relevant person” if the CMA considers that its decision whether to make a reference is likely to have a substantial impact on the person's interests.
(5) In consulting a person for the purposes of this section, the CMA shall, so far as practicable, give its reasons for the proposal.
(6) In considering what is practicable for the purposes of this section, the CMA shall, in particular, have regard to—
(a) the restrictions imposed by the time-table for making the decision (see section 131B); and
(b) any need to keep what is proposed, or the reasons for it, confidential.
131B Market studies and the making of decisions to refer: time-limits etc
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) Where the CMA has published a market study notice it shall, within the period of 12 months beginning with the date on which it publishes the notice, prepare and publish a report (referred to in this Part as a “market study report”) which sets out—
(a) the findings of the CMA in relation to the matter specified in the notice; and
(b) the action (if any) which the CMA proposes to take , or has taken, in relation to the matter.
(5) In a case to which section 131A applies, the market study report shall, in particular, contain—
(a) the decision of the CMA to make a reference under section 131 in relation to the matter specified in the market study notice, the decision to accept an undertaking under section 154A instead of, or in addition to, making such a reference or (as the case may be) the decision otherwise not to make such a reference;
(b) the CMA's reasons for the decision; and
(c) such information as the CMA considers appropriate for facilitating a proper understanding of its reasons for the decision.
(6) Where a market study report contains a decision of the CMA to make a reference under section 131 in relation to a matter, the CMA shall, at the same time as it publishes the report, make the reference.
(7) Subsections (4) to (6) are subject to section 140A (duty of Secretary of State to refer in public interest intervention cases).
(8) Where the CMA—
(a) has published a market study notice, and
(b) has decided not to make a reference under section 131 in relation to the matter specified in the notice,
the CMA may subsequently make a reference under section 131 in relation to the matter (without first publishing a market study notice in relation to the matter) only where subsection (9) applies.
(9) This subsection applies where—
(a) the reference under section 131 is made two years or more after the publication of the market study report in relation to the market study notice, or
(b) there has been a material change in circumstances since the preparation of the report.
131C Time-limits under section 131B: supplementary
(1) The Secretary of State may by order amend section 131B so as to alter one or more of the following periods—
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) the period of 12 months mentioned in subsection (4) or any period for the time being there mentioned in substitution for that period.
(2) But no alteration may be made by virtue of subsection (1) which results in—
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) the period for the time being mentioned in subsection (4) exceeding 12 months.
(3) Before making an order under this section the Secretary of State shall consult the CMA and such other persons as the Secretary of State considers appropriate.
(1) Subsection (3) applies where, in relation to any goods or services—
(a) the appropriate Minister is not satisfied with a decision of the CMA not to make a reference under section 131; and
(b) in a case in which the CMA has published a market study notice under section 130A, the period permitted by section 131B for the preparation and publication by the CMA of the market study report has expired.
(2) Subsection (3) also applies where, in relation to any goods or services, the appropriate Minister—
(a) has brought to the attention of the CMA information which the appropriate Minister considers to be relevant to the question of whether the CMA should make a reference under section 131; but
(b) is not satisfied that the CMA will decide, within such period as the appropriate Minister considers to be reasonable, whether to publish a market study notice in relation to the matter concerned.
(3) The appropriate Minister may, subject to subsection (4), make a reference to the chair of the CMA for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 if he has reasonable grounds for suspecting that any feature, or combination of features, of a market in the United Kingdom for goods or services prevents, restricts or distorts competition in connection with the supply or acquisition of any goods or services in the United Kingdom or a part of the United Kingdom.
(3A) In a case where the feature or each of the features concerned falls within section 131(2)(b) or (c), a reference under subsection (3) may be made in relation to more than one market in the United Kingdom for goods or services.
(4) No reference shall be made under this section if—
(a) the making of the reference is prevented by section 156(A1) or (1); or
(b) a reference has been made under section 140A(6) in relation to the same matter but has not been finally determined.
(5) In this Part “the appropriate Minister” means—
(a) the Secretary of State; ...
(b) the Secretary of State and one or more than one other Minister of the Crown acting jointly;
(c) the Scottish Ministers and the Secretary of State acting jointly; or
(d) the Scottish Ministers, the Secretary of State and one or more than one other Minister of the Crown, acting jointly.
(1) A market investigation reference shall, in particular, specify—
(a) the enactment under which it is made;
(b) the date on which it is made; ...
(c) in the case of an ordinary reference, the description of goods or services to which the feature or combination of features concerned relates; and
(d) in the case of a cross-market reference, the feature or features concerned and the descriptions of goods or services to which it or they relate.
(1A) A market investigation reference may be framed so as to require the group constituted by the chair of the CMA in respect of the reference to confine its investigation into the effects of features of markets in the United Kingdom for goods or services of a description specified in the reference to the effects of particular features of such markets.
(1B) For the purposes of subsection (1A), “particular features” means features specified in the reference.
(2) For the purposes of subsection (1A), a reference may (for example) specify or describe features that exist in connection with—
(a) a supply or, in the case of a cross-market reference, supplies, of a description specified in the reference, of the goods or services concerned; or
(b) an acquisition or, in the case of a cross-market reference, acquisitions, of a description specified in the reference, of the goods or services concerned.
(3) A description of the kind mentioned in subsection (2)(a) or (b) may, in particular, be by reference to—
(a) the place where the goods or services are supplied or acquired; or
(b) the persons by or to whom they are supplied or by or from whom they are acquired.
(1) Where a reference is made to the chair of the CMA under section 131, 132 or 140A for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013, the functions of the CMA under or by virtue of the following provisions of this Part in relation to the matter concerned are to be carried out on behalf of the CMA by the group so constituted—
(a) sections 134 to 137, except for section 135(1);
(aa) sections 138 to 138B so far as relating to an adverse effect on competition in respect of which the CMA is required to take action in accordance with section 138(2) within the period permitted by section 138A(1);
(b) sections 140B to 145, 148, 148A and 151;
(ba) section 154A, so far as relating to undertakings in lieu of a report;
(c) sections 157 and 158;
(d) section 159;
(e) section 160, except for subsection (6) of that section;
(f) section 161, except for subsection (5) of that section;
(fa) section 161C;
(g) section 162(4), so far as relating to an enforcement undertaking or enforcement order made on behalf of the CMA by the group;
(h) section 164(2)(b), so far as relating to an enforcement order made on behalf of the CMA by the group;
(i) sections 167 and 167A, so far as relating to an enforcement undertaking or enforcement order made on behalf of the CMA by the group;
(j) section 168;
(k) section 169, so far as relating to a decision mentioned in paragraph (a)(iii) of the definition of relevant decision in subsection (6) of that section;
(l) section 172, so far as relating to anything done on behalf of the CMA by the group;
(m) section 174, where the permitted purpose in question relates to a function that (by virtue of this section) is being or is to be carried out on behalf of the CMA by the group;
(n) sections 174A to 174D, so far as relating to a notice given under section 174 on behalf of the CMA by the group;
(o) section 179(5)(b), so far as relating to a decision of the group;
(p) Schedule 10, so far as relating to an enforcement undertaking or enforcement order which the group is considering accepting or making, or which the group has accepted or made, on behalf of the CMA.
(2) Nothing in subsection (1) prevents the CMA Board from carrying out a function of the CMA under or by virtue of the following provisions of this Part where the group constituted as mentioned in subsection (1) has ceased to exist—
(za) section 154A, so far as relating to undertakings in lieu of a report;
(a) section 160 and Schedule 10, so far as relating to the making of an order under section 160;
(b) sections 159 to 161 and Schedule 10, so far as relating to the variation, supersession or release of enforcement undertakings or the variation or revocation of enforcement orders;
(c) section 162(4);
(ca) section 162B;
(d) section 164(2)(b);
(e) sections 167 and 167A.
134 Questions to be decided on market investigation references
(1) The CMA shall, on an ordinary reference, decide whether any relevant feature of each relevant market prevents, restricts or distorts competition in connection with the supply or acquisition of any goods or services in the United Kingdom or a part of the United Kingdom.
(1A) The CMA shall, on a cross-market reference, decide in relation to each feature and each combination of the features specified in the reference, whether the feature or combination of features, as it relates to goods or services of one or more than one of the descriptions so specified, prevents, restricts or distorts competition in connection with the supply or acquisition of any goods or services in the United Kingdom or a part of the United Kingdom.
(2) For the purposes of this Part, in relation to an ordinary reference, there is an adverse effect on competition if any relevant feature of a relevant market prevents, restricts or distorts competition in connection with the supply or acquisition of any goods or services in the United Kingdom or a part of the United Kingdom.
(2A) For the purposes of this Part, in relation to a cross-market reference, there is an adverse effect on competition if a feature or a combination of the features specified in the reference, as that feature or combination of features relates to goods or services of one or more than one of the descriptions so specified, prevents, restricts or distorts competition in connection with the supply or acquisition of any goods or services in the United Kingdom or a part of the United Kingdom.
(2B) In subsections (1) and (2), “relevant feature” means—
(a) any feature of a relevant market which is not excluded from investigation by virtue of section 133(1A), or
(b) a combination of such features.
(3) In subsections (1) and (2) “relevant market” means—
(a) in the case of subsection (2) so far as it applies in connection with a possible reference, a market in the United Kingdom—
(i) for goods or services of a description to be specified in the reference; and
(ii) which would not be excluded from investigation by virtue of section 133(2); and
(b) in any other case, a market in the United Kingdom—
(i) for goods or services of a description specified in the reference concerned; and
(ii) which is not excluded from investigation by virtue of section 133(2).
(4) The CMA shall, if it has decided on a market investigation reference that there is an adverse effect on competition, decide the following additional questions—
(a) whether action should be taken by it under section 138 for the purpose of remedying, mitigating or preventing the adverse effect on competition concerned or any detrimental effect on customers so far as it has resulted from, or may be expected to result from, the adverse effect on competition;
(b) whether it should recommend the taking of action by others for the purpose of remedying, mitigating or preventing the adverse effect on competition concerned or any detrimental effect on customers so far as it has resulted from, or may be expected to result from, the adverse effect on competition; and
(c) in either case, if action should be taken, what action should be taken and what is to be remedied, mitigated or prevented.
(5) For the purposes of this Part, in relation to a market investigation reference, there is a detrimental effect on customers if there is a detrimental effect on customers or future customers in the form of—
(a) higher prices, lower quality or less choice of goods or services in any market in the United Kingdom (whether or not the market or markets to which the feature or features concerned relate); or
(b) less innovation in relation to such goods or services.
(6) In deciding the questions mentioned in subsection (4), the CMA shall, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to the adverse effect on competition and any detrimental effects on customers so far as resulting from the adverse effect on competition.
(7) In deciding the questions mentioned in subsection (4), the CMA may, in particular, have regard to the effect of any action on any relevant customer benefits of the feature or features concerned of the market or markets concerned.
(8) For the purposes of this Part a benefit is a relevant customer benefit of a feature or features of a market if—
(a) it is a benefit to customers or future 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 to which the feature or features concerned relate); or
(ii) greater innovation in relation to such goods or services; and
(b) the CMA or (as the case may be) the Secretary of State believes that—
(i) the benefit has accrued as a result (whether wholly or partly) of the feature or features concerned or may be expected to accrue within a reasonable period as a result (whether wholly or partly) of that feature or those features; and
(ii) the benefit was, or is, unlikely to accrue without the feature or features concerned.
(1) The CMA or (as the case may be) the appropriate Minister may at any time vary a market investigation reference made by it under section 131 or (as the case may be) by the appropriate Minister under section 132.
(2) The Office of Fair Trading... appropriate Minister shall consult the CMA before varying any such reference made by him.
(3) Subsection (2) shall not apply if the CMA has requested the variation concerned.
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
136 Investigations and reports on market investigation references
(1) The CMA shall prepare and publish a report on a market investigation reference within the period permitted by section 137.
(2) The report shall, in particular, contain—
(a) the decisions of the CMA on the questions which it is required to answer by virtue of section 134;
(aa) any decision of the CMA under section 154A to accept an undertaking partially in lieu of a report;
(b) its reasons for its decisions; and
(c) such information as the CMA considers appropriate for facilitating a proper understanding of those questions and of its reasons for its decisions.
(3) The CMA shall carry out such investigations as it considers appropriate for the purposes of preparing a report under this section.
(4) Where a reference has been made by the appropriate Minister under section 132 the CMA shall, at the same time as the report under this section is published, give it to the appropriate Minister.
(5) Where a reference has been made by the CMA under section 131 or by the appropriate Minister under section 132 in circumstances in which a reference could have been made by a relevant sectoral regulator under section 131 as it has effect by virtue of a relevant sectoral enactment, the CMA shall, at the same time as the report under this section is published, give a copy of it to the relevant sectoral regulator concerned.
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7) In this Part “relevant sectoral enactment” means—
(a) in relation to the Director General of Telecommunications, section 50 of the Telecommunications Act 1984 (c. 12);
(b) in relation to the Gas and Electricity Markets Authority, section 36A of the Gas Act 1986 (c. 44) , section 43 of the Electricity Act 1989 or (as the case may be) section 36 of the Energy Act 2023;
(c) in relation to the Water Services Regulation Authority , section 31 of the Water Industry Act 1991 (c. 56);
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(e) in relation to the Office of Rail and Road, section 67 of the Railways Act 1993 (c. 43);
(ea) in relation to the Financial Conduct Authority, section 234I of the Financial Services and Markets Act 2000;
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(g) in relation to the Civil Aviation Authority, section 86 of the Transport Act 2000 (c. 38). or section 60 of the Civil Aviation Act 2012;
(h) in relation to the Office of Communications, sections 370 and 371 of the Communications Act 2003.
(h) in relation to the Northern Ireland Authority for Utility Regulation, Article 46 of the Electricity (Northern Ireland) Order 1992, Article 23 of the Gas (Northern Ireland) Order 1996 or Article 29 of the Water and Sewerage Services (Northern Ireland) Order 2006.
(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(j) in relation to the Payment Systems Regulator, section 59 of the Financial Services (Banking Reform) Act 2013.
(8) In this Part “relevant sectoral regulator” means the Director General of Telecommunications , the Gas and Electricity Markets Authority, the Water Services Regulation Authority, . . . , the Office of Rail and Road, the Financial Conduct Authority,. . . , the Civil Aviation Authority or the Office of Communications, the Northern Ireland Authority for Utility Regulation ... or the Payment Systems Regulator.
(9) The Secretary of State may by order modify subsection (7) or (8).
(10) In this section “the Payment Systems Regulator” means the body established under section 40 of the Financial Services (Banking Reform) Act 2013.
137 Time-limits for market investigations and reports
(1) The CMA shall prepare and publish its report under section 136 within the period of 18 months beginning with the date of the market investigation reference concerned.
(2) Subsection (1) is subject to section 151(3) and (5).
(2A) The CMA may extend, by no more than 6 months, the period within which its report under section 136 is to be prepared and published if it considers that there are special reasons for doing so.
(2B) An extension under subsection (2A) shall come into force when published under section 172.
(2C) No more than one extension is possible under subsection (2A).
(3) The Secretary of State may by order amend this section so as to alter one or more of the following periods—
(a) the period of 18 months mentioned in subsection (1) or any period for the time being there mentioned in substitution for that period;
(b) the period of 6 months mentioned in subsection (2A) or any period for the time being there mentioned in substitution for that period.
(4) But no alteration shall be made by virtue of subsection (3) which results in—
(a) the period for the time being mentioned in subsection (1) exceeding 18 months; or
(b) the period for the time being mentioned in subsection (2A) exceeding 6 months.
(5) An order under subsection (3) shall not affect any period of time within which the CMA is under a duty to prepare and publish its report under section 136 in relation to a market investigation reference if the CMA is already under that duty in relation to that reference when the order is made.
(6) Before making an order under subsection (3) the Secretary of State shall consult the CMA and such other persons as he considers appropriate.
(7) References in this Part to the date of a market investigation reference shall be construed as references to the date specified in the reference as the date on which it is made.
(1) Subsection (2) applies where a report of the CMA has been prepared and published under section 136 within the period permitted by section 137 and contains the decision that there is one or more than one adverse effect on competition.
(2) The CMA shall, within the period permitted by section 138A, in relation to each adverse effect on competition, take such action under section 159 or 161 as it considers to be reasonable and practicable—
(a) to remedy, mitigate or prevent the adverse effect on competition concerned; and
(b) to remedy, mitigate or prevent any detrimental effects on customers so far as they have resulted from, or may be expected to result from, the adverse effect on competition.
(3) The decisions of the CMA under subsection (2) shall be consistent with its decisions as included in its report by virtue of section 134(4) unless there has been a material change of circumstances since the preparation of the report or the CMA otherwise has a special reason for deciding differently.
(4) In making a decision under subsection (2), the CMA shall, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to the adverse effect on competition concerned and any detrimental effects on customers so far as resulting from the adverse effect on competition.
(5) In making a decision under subsection (2), the CMA may, in particular, have regard to the effect of any action on any relevant customer benefits of the feature or features of the market or markets concerned.
(6) The CMA shall take no action under subsection (2) to remedy, mitigate or prevent any detrimental effect on customers so far as it may be expected to result from the adverse effect on competition concerned if—
(a) no detrimental effect on customers has resulted from the adverse effect on competition; and
(b) the adverse effect on competition is not being remedied, mitigated or prevented.
138A Time-limits for discharging duty under section 138
(A1) Subsection (A3) applies in relation to an adverse effect on competition in respect of which the CMA—
(a) has begun an implementation trial under section 161C, or
(b) considers that it is not reasonably practicable to discharge its duty under section 138(2) in accordance with subsection (1) as a result of such an implementation trial in respect of another adverse effect on competition.
(A2) Subsection (1) applies in relation to any other adverse effect on competition.
(A3) Where this subsection applies, the CMA must discharge its duty under section 138(2) before the day specified under section 161D(5)(b)(ii).
(1) Where this subsection applies, the CMA shall discharge its duty under section 138(2) within the period of 6 months beginning with the date on which it publishes the report concerned under section 136.
(2) The CMA may extend, by no more than 4 months, the period within which its duty under section 138(2) is required to be discharged in accordance with subsection (1) if it considers that there are special reasons for doing so.
(3) The CMA may extend the period within which its duty under section 138(2) is required to be discharged if it considers that—
(a) a person has failed (whether with or without reasonable excuse) to comply with any requirement of a notice under section 174 which was given in relation to the reference; and
(b) the failure is preventing the CMA from properly discharging its duty under section 138(2).
(4) An extension under subsection (2) or (3) shall come into force when published under section 172.
(5) An extension under subsection (3) continues in force until—
(a) the person concerned provides the information or documents to the satisfaction of the CMA or (as the case may be) appears as a witness in accordance with the requirements of the CMA; or
(b) the CMA publishes its decision to cancel the extension.
(1) A period extended under section 138A(2) may also be extended under section 138A(3), and a period extended under section 138A(3) may also be extended under section 138A(2).
(2) No more than one extension is possible under section 138A(2).
(3) Where a period is extended or further extended under section 138A(2) or (3), 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 within which the CMA shall discharge its duty under section 138(2) is further extended;
(b) the further extension and at least one previous extension is made under section 138A(3); and
(c) the same days or fractions of days are included in or comprise the further extension and are included in or comprise at least one such previous extension.
(5) In calculating the period of the further extension, any days or fractions of days of the kind mentioned in subsection (4)(c) shall be disregarded.
(6) The Secretary of State may by order amend section 138A so as to alter one or more of the following periods—
(a) the period of 6 months mentioned in subsection (1) or any period for the time being there mentioned in substitution for that period;
(b) the period of 4 months mentioned in subsection (2) or any period for the time being there mentioned in substitution for that period.
(7) But no alteration shall be made by virtue of subsection (6) which results in—
(a) the period for the time being mentioned in section 138A(1) exceeding 6 months; or
(b) the period for the time being mentioned in section 138A(2) exceeding 4 months.
(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.
139 Public interest intervention by Secretary of State
(A1) This section applies where—
(a) the CMA has published a market study notice in relation to a matter; or
(b) the CMA has begun the process of consultation under section 169 in respect of a decision of the kind mentioned in subsection (6)(a)(i) of that section.
(1) The Secretary of State may, within the permitted period, give a notice to the CMA if the Secretary of State believes that it is or may be the case that one or more than one public interest consideration is relevant to the matter.
(1A) For the purposes of subsection (1), the permitted period, in a case to which this section applies by virtue of paragraph (a) of subsection (A1), is the period beginning with the publication of the market study notice and ending with—
(a) the acceptance by the CMA of an undertaking fully in lieu of a reference under section 154A instead of the making of a reference under section 131 in relation to the matter;
(b) the publication of notice of the fact that the CMA has otherwise decided not to make such a reference in relation to the matter;
(c) the making of such a reference in relation to the matter; or
(d) in a case where the period permitted by section 131B for the preparation and publication by the CMA of the market study report in relation to the matter has expired and no such report has been prepared or published, the end of that period.
(1B) For the purposes of subsection (1), the permitted period, in a case to which this section applies by virtue of paragraph (b) of subsection (A1), is the period beginning with the date on which the CMA begins the process of consultation concerned and ending with—
(a) the acceptance by the CMA of an undertaking fully in lieu of a reference under section 154A instead of the making of a reference under section 131 in relation to the matter concerned;
(b) the publication of notice of the fact that the CMA has otherwise decided not to make such a reference in relation to the matter; or
(c) the making of such a reference in relation to the matter.
(2) The Secretary of State may, within the permitted period, give a notice to the CMA if—
(a) the CMA is considering whether to accept—
(i) an undertaking in lieu of a reference under section 154A in relation to the matter; or
(ii) an undertaking varying or superseding any such undertaking;
(b) the CMA has published a notice under section 155(1) or (4); and
(c) the Secretary of State believes that it is or may be the case that one or more than one public interest consideration is relevant to the proposal to accept the undertaking.
(2A) For the purposes of subsection (2), the permitted period is—
(a) where the CMA publishes a notice under section 155(1), the period within which representations may be made in relation to the proposed undertaking (as to which, see section 155(2)(f));
(b) where the CMA publishes a notice under section 155(4), the period within which representations may be made in relation to the proposed modifications to the proposed undertaking (as to which, see section 155(5)(c)).
(3) In this Part “intervention notice” means a notice under subsection (1) or (2).
(4) No more than one intervention notice shall be given under subsection (1) in relation to the same matter.
(4A) An intervention notice shall not be given under subsection (2) in relation to a proposal to accept an undertaking if the proposal relates to a matter in respect of which an intervention notice under subsection (1) has already been given.
(4B) No more than one intervention notice shall be given under subsection (2) in relation to the same proposed undertaking or in relation to proposed undertakings which do not differ from each other in any material respect.
(4C) In this section, a reference to the acceptance of an undertaking shall, in a case where the CMA has accepted a group of undertakings under section 154A, be treated as a reference to the acceptance of the last undertaking in the group; but undertakings which vary, supersede or revoke earlier undertakings shall be disregarded for the purposes of this section.
(5) For the purposes of this Part a public interest consideration is a consideration which, at the time of the giving of the intervention notice concerned, is specified in section 153 or is not so specified but, in the opinion of the Secretary of State, ought to be so specified.
(6) Where the Secretary of State has given an intervention notice mentioning a public interest consideration which, at that time, is not finalised, he shall, as soon as practicable, take such action as is within his power to ensure that it is finalised.
(7) For the purposes of this Part a public interest consideration is finalised if—
(a) it is specified in section 153 otherwise than by virtue of an order under subsection (3) of that section; or
(b) it is specified in that section by virtue of an order under subsection (3) of that section and the order providing for it to be so specified has been laid before, and approved by, Parliament in accordance with subsection (6) of section 181 and within the period mentioned in that subsection.