(1) An intervention notice under section 139(1) shall state—
(a) the matter to which the market study notice or (as the case may be) the consultation under section 169 concerned relates;
(b) the date of publication of that notice or (as the case may be) on which the process of consultation began;
(c) the public interest consideration or considerations which are, or may be, relevant to the matter; and
(d) where any public interest consideration concerned is not finalised, the proposed timetable for finalising it.
(2) Where the Secretary of State believes that it is or may be the case that two or more public interest considerations are relevant to the matter, he may decide not to mention in the intervention notice such of those considerations as he considers appropriate.
(3) The Secretary of State may at any time revoke an intervention notice which has been given under section 139(1) and which is in force.
(4) An intervention notice under section 139(1) shall come into force when it is given and shall cease to be in force when the matter to which it relates is finally determined under this Chapter.
(4A) An intervention notice under section 139(1) shall also cease to be in force if—
(a) it mentions a public interest consideration which was not finalised on the giving of the notice or public interest considerations which, at that time, were not finalised;
(b) no other public interest consideration is mentioned in the notice;
(c) at least 24 weeks has elapsed since the giving of the notice;
(d) the public interest consideration mentioned in the notice has not been finalised within that period of 24 weeks or (as the case may be) none of the public interest considerations mentioned in the notice has been finalised within that period of 24 weeks; and
(e) the Secretary of State has not, by the end of that period of 24 weeks, made a reference under section 140A in relation to the matter.
(4B) Subsection (4D) applies in a case where—
(a) an intervention notice ceases to be in force in accordance with subsection (4A);
(b) the CMA has, before the time at which the notice ceases to be in force, prepared a market study report in relation to the matter within the period permitted by section 131B(4) and given it to the Secretary of State in accordance with section 140A(3)(b); and
(c) the report contains the decision of the CMA that it should make a reference in relation to the matter concerned under section 131.
(4C) Subsection (4D) also applies in a case where—
(a) an intervention notice ceases to be in force in accordance with subsection (4A); and
(b) the CMA has, before the time at which the notice ceases to be in force—
(i) decided that it should make an ordinary reference or a cross-market reference under section 131 in relation to the matter concerned; and
(ii) given a document containing its decision, the reasons for it and such information as the CMA considers appropriate for facilitating a proper understanding of the reasons for its decision to the Secretary of State in accordance with section 140A(3)(c).
(4D) In a case to which this subsection applies—
(a) the CMA shall, as soon as reasonably practicable, make a reference in relation to the matter under section 131; and
(b) the reference is to be treated for the purposes of this Part as having been made in accordance with the requirements imposed by this Part.
(5) For the purposes of subsection (4) a matter to which an intervention notice under section 139(1) relates is finally determined under this Chapter if—
(za) the CMA accepts an undertaking fully in lieu of a reference under section 154A;
(zb) the CMA publishes notice that it has otherwise decided not to make a reference under section 131 in relation to the matter;
(zc) the period permitted for the preparation by the CMA of the market study report in relation to the matter and for the report to be published under section 131B(4) or (as the case may be) given to the Secretary of State under section 140A(3) has expired and no such report has been so prepared or no such action has been taken;
(zd) the Secretary of State makes a reference under section 140A(5) in relation to the matter;
(a) the period permitted by section 144 for the preparation of the report of the CMA under section 142 and for action to be taken in relation to it under section 143(1) or (3) or (as the case may be) 143A(2) or (3) has expired and no such report has been so prepared or no such action has been taken;
(b) the CMA decides under section 145(1) to terminate its investigation;
(c) the report of the CMA has been prepared under section 142 and published under section 143(1) or (as the case may be) 143A(2) within the period permitted by section 144;
(d) the Secretary of State fails to make and publish a decision under subsection (2) of section 146 within the period required by subsection (3) of that section or (as the case may be) fails to make and publish a decision under subsection (2) of section 146A within the period required by subsection (6) of that section;
(e) the Secretary of State decides under section 146(2) that no eligible public interest consideration is relevant or (as the case may be) decides under section 146A(2) to make no finding at all in relation to the matter;
(f) the Secretary of State decides under section 147(2) or (as the case may be) 147A(2) neither to accept an undertaking under section 159 nor to make an order under section 161;
(g) the Secretary of State accepts an undertaking under section 159 or makes an order under section 161; or
(h) the Secretary of State decides to revoke the intervention notice concerned.
(6) For the purposes of subsections (4) and (5) the time when a matter to which an intervention notice under section 139(1) relates is finally determined under this Chapter is—
(za) in a case falling within subsection (5)(za), the acceptance of the undertaking concerned;
(zb) in a case falling within subsection (5)(zb), the publication of the notice concerned;
(a) in a case falling within subsection (5)(zc), (a) or (d), the expiry of the period concerned;
(aa) in a case falling within subsection (5)(zd), the making of the reference concerned;
(b) in a case falling within subsection (5)(b), (e), (f) or (h), the making of the decision concerned;
(c) in a case falling within subsection (5)(c), the publication of the report concerned; and
(d) in a case falling within subsection (5)(g), the acceptance of the undertaking concerned or (as the case may be) the making of the order concerned.
(6A) In subsection (6)(za) the reference to the acceptance of the undertaking concerned shall, in a case where the CMA has accepted a group of undertakings under section 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 subsections (5)(za) and (6)(za).
(7) In subsection (6)(d) the reference to the acceptance of the undertaking concerned or the making of the order concerned shall, in a case where the enforcement action under section 147(2) or (as the case may be) 147A(2) involves the acceptance of a group of undertakings, the making of a group of orders or the acceptance and making of a group of undertakings and orders, be treated as a reference to the acceptance or making of the last undertaking or order in the group; but undertakings or orders which vary, supersede or revoke earlier undertakings or orders shall be disregarded for the purposes of subsections (5)(g) and (6)(d).
140A Section 139(1) intervention notices: Secretary of State's duty to refer
(1) This section applies where—
(a) the CMA has prepared a market study report in relation to a matter within the period permitted by section 131B(4);
(b) an intervention notice under section 139(1) is in force in relation to the matter at the time when the CMA would (but for this section) be required to publish the report; and
(c) the report contains the decision of the CMA that it should make an ordinary reference or a cross-market reference in relation to the matter under section 131.
(2) This section also applies where—
(a) the CMA has conducted a consultation under section 169 in respect of a decision of the kind mentioned in subsection (6)(a)(i) of that section;
(b) the CMA has decided that it should make an ordinary reference or a cross-market reference in relation to the matter concerned under section 131; and
(c) an intervention notice under section 139(1) is in force in relation to the matter at the time when the CMA makes that decision.
(3) The CMA—
(a) shall not exercise the power under section 131 to refer the matter;
(b) in a case falling within subsection (1), shall not publish the market study report under section 131B(4) and shall instead, within the period mentioned in section 131B(4), give the report to the Secretary of State; and
(c) in a case falling within subsection (2), shall give to the Secretary of State a document containing—
(i) its decision and the reasons for its decision; and
(ii) such information as the CMA considers appropriate for facilitating a proper understanding of the reasons for its decision.
(4) The Secretary of State shall decide whether any public interest consideration which was mentioned in the intervention notice is relevant to the matter in question.
(5) Where the Secretary of State decides that there is no relevant public interest consideration—
(a) the Secretary of State shall (in accordance with the CMA's decision) make a reference in relation to the matter to the chair of the CMA for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013; and
(b) the reference is to be treated for the purposes of this Part as an ordinary reference or (as the case may be) a cross-market reference made under section 131 in accordance with the requirements imposed by this Part.
(6) Where the Secretary of State decides that there is one or more than one relevant public interest consideration, the Secretary of State shall (in accordance with the CMA's decision) make a reference in relation to the matter to the chair of the CMA for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013.
(7) The Secretary of State shall specify in a reference made under subsection (6)—
(a) the relevant public interest consideration or considerations; and
(b) whether the reference is a restricted PI reference or a full PI reference (as to which, see sections 141 and 141A respectively).
(8) Where the Secretary of State makes a full PI reference under subsection (6), the reference shall also specify whether the Secretary of State proposes to appoint a public interest expert under section 141B.
(9) For the purposes of this Part, a reference under subsection (6) is to be treated—
(a) in a case where the decision of the CMA was that it should make an ordinary reference, as an ordinary reference;
(b) in a case where the decision of the CMA was that it should make a cross-market reference, as a cross-market reference.
(10) In a case falling within subsection (1), the Secretary of State shall publish the market study report concerned at the same time as the Secretary of State makes a reference under this section.
(11) In a case falling within subsection (2), the Secretary of State shall publish the document given to the Secretary of State by the CMA under subsection (3)(c), at the same time as the Secretary of State makes a reference under this section.
(12) In this Part—
“full PI reference” means a reference made by the Secretary of State under subsection (6) which specifies that it is a full PI reference;
“restricted PI reference” means a reference made by the Secretary of State under subsection (6) which specifies that it is a restricted PI reference.
140B Variation of restricted PI references and full PI references
(1) The Secretary of State may at any time vary a restricted PI reference or a full PI reference.
(2) The Secretary of State shall consult the CMA before varying any such reference.
(3) But subsection (2) does not apply if the CMA requested the variation concerned.
(4) No variation under this section is capable of altering the public interest consideration or considerations specified in the reference.
141 Restricted PI references: questions to be decided by CMA
(1) This section applies where the Secretary of State makes a restricted PI reference.
(2) The CMA shall, on an ordinary reference, decide whether any feature, or combination of features, of each relevant market (within the meaning given by section 134(3)) 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) 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.
(3) The CMA shall, if it has decided that there is an adverse effect on competition, decide the following additional questions—
(a) whether action should be taken by the Secretary of State under section 147 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 the CMA should recommend the taking of other action by the Secretary of State or action by persons other than itself and the Secretary of State 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.
(4) The CMA shall, if it has decided that there is an adverse effect on competition, also decide separately the following questions (on the assumption that it is proceeding as mentioned in section 148(1))—
(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 the CMA should recommend the taking of action by other persons 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) In deciding the questions mentioned in subsections (3) and (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 concerned and any detrimental effects on customers so far as resulting from the adverse effect on competition.
(6) In deciding the questions mentioned in subsections (3) and (4), 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.
141A Full PI references: questions to be decided by CMA
(1) This section applies where the Secretary of State makes a full PI reference.
(2) The CMA shall, on an ordinary reference, decide whether any feature, or combination of features, of each relevant market (within the meaning given by section 134(3)) 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.
(3) The CMA shall, on a cross-market reference, decide in relation to each feature and each combination of the features specified in the reference, whether the feature or combination of features, as it relates to goods or services of one or more than one of the descriptions so specified, prevents, restricts or distorts competition in connection with the supply or acquisition of any goods or services in the United Kingdom or a part of the United Kingdom.
(4) The CMA shall, if it has decided that there is an adverse effect on competition, decide whether, taking account only of any adverse effect on competition and the admissible public interest consideration or considerations concerned, any feature or combination of features which gave rise to an adverse effect on competition operates or may be expected to operate against the public interest.
(5) The CMA shall, if it has decided that any such feature or combination of features operates or may be expected to operate against the public interest, also decide separately the following additional questions—
(a) whether action should be taken by the Secretary of State under section 147A for the purpose of remedying, mitigating or preventing any of the effects adverse to the public interest concerned;
(b) whether the CMA should recommend the taking of other action by the Secretary of State, or action by persons other than itself and the Secretary of State, for the purpose of remedying, mitigating or preventing any of the effects adverse to the public interest concerned; and
(c) in either case, if action should be taken, what action should be taken and what is to be remedied, mitigated or prevented.
(6) The CMA shall, if it has decided that there is an adverse effect on competition, also decide separately the following questions (on the assumption that it is proceeding as mentioned in section 148A(2))—
(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 the CMA should recommend the taking of action by other persons 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.
(7) In a case where the Secretary of State has appointed a public interest expert under section 141B in relation to a full PI reference, the CMA shall, in deciding the questions mentioned in subsections (4) and (5), have regard, in particular, to the views of the expert.
(8) In deciding the questions mentioned in subsection (5), the CMA shall, in particular, have regard to—
(a) the need to achieve as comprehensive a solution as is reasonable and practicable to the effects adverse to the public interest concerned; and
(b) any detrimental effects on customers so far as resulting from those effects.
(9) In deciding the questions mentioned in subsection (6), the CMA shall, in particular, have regard to—
(a) the need to achieve as comprehensive a solution as is reasonable and practicable to the adverse effect on competition concerned; and
(b) any detrimental effects on customers so far as resulting from it.
(10) In deciding the questions mentioned in subsections (5) and (6), 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.
(11) In this section, “admissible public interest consideration” means any public interest consideration specified in the reference concerned and which the CMA is not under a duty to disregard.
141B Full PI references: power of Secretary of State to appoint expert
(1) This section applies where the Secretary of State makes a full PI reference.
(2) The Secretary of State may appoint one or more than one person to advise the CMA on the questions mentioned in subsections (4) and (5) of section 141A in relation to the reference.
(3) A person so appointed shall be a person who appears to the Secretary of State to have particular knowledge of, or expertise in, matters relating to a public interest consideration specified in the reference.
(4) Each person so appointed is referred to in this Part as a “public interest expert”.
(5) The terms and conditions of appointment of a public interest expert (including, in particular, as to remuneration) are to be determined by the Secretary of State.
(6) Any appointment of a public interest expert under this section shall be made within the period of 2 months beginning with the date of the reference concerned.
(7) Before appointing a public interest expert the Secretary of State shall consult the chair of the CMA.
(1) Where the Secretary of State makes a restricted PI reference or a full PI reference, the CMA shall prepare a report on the reference and take action in relation to it under section 143(1) or (3) or (as the case may be) 143A(2) or (3) within the period permitted by section 144.
(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 141 or (as the case may be) 141A;
(b) its reasons for its decisions; ...
(c) such information as the CMA considers appropriate for facilitating a proper understanding of those questions and of its reasons for its decisions; and
(d) in the case of a report in relation to a full PI reference in respect of which the Secretary of State appointed a public interest expert, a summary of the views of the expert.
(2A) A summary of the views of a public interest expert in a report under this section shall be approved by the expert before action is taken in relation to the report under section 143A(2) or (3).
(3) The CMA shall carry out such investigations as it considers appropriate for the purposes of preparing a report under this section.
(A1) This section applies in relation to a report prepared under section 142 in respect of a restricted PI reference.
(1) The CMA shall publish the report if it contains—
(a) the decision of the CMA that there is no adverse effect on competition; or
(b) the decisions of the CMA that there is one or more than one adverse effect on competition but, on the question mentioned in section 141(4)(a) and in relation to each adverse effect on competition, that no action should be taken by it.
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) Where the report contains the decisions of the CMA that there is one or more than one adverse effect on competition and, on the question mentioned in section 141(4)(a) and in relation to at least one such adverse effect, that action should be taken by it, the CMA shall give the report to the Secretary of State.
(4) The Secretary of State shall publish, no later than publication of his decision under section 146(2) in relation to the case, a report of the CMA given to him under subsection (3) and not required to be published by virtue of section 148(2).
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
143A Full PI references: publication etc of reports of CMA
(1) This section applies in relation to a report prepared under section 142 in respect of a full PI reference.
(2) The CMA shall publish the report if it contains—
(a) the decision of the CMA that there is no adverse effect on competition;
(b) the decision of the CMA that there is an adverse effect on competition but that the feature or combination of features which gave rise to it does not operate and may not be expected to operate against the public interest; or
(c) the decisions of the CMA that there is one or more than one adverse effect on competition and that one or more than one of the features or combinations of features which gave rise to an adverse effect on competition operates or may be expected to operate against the public interest but, on the question mentioned in section 141A(5)(a), and in relation to each effect adverse to the public interest concerned, that no action should be taken by the Secretary of State.
(3) The CMA shall give the report to the Secretary of State if it contains the decisions of the CMA—
(a) that there is one or more than one adverse effect on competition and that one or more than one of the features or combinations of features which gave rise to an adverse effect on competition operates or may be expected to operate against the public interest; and
(b) in relation to at least one effect adverse to the public interest concerned, that action should be taken by the Secretary of State.
(4) The Secretary of State shall publish, no later than publication of the Secretary of State's decision under section 146A(2) in relation to the case, a report of the CMA given to the Secretary of State under subsection (3) and not required to be published by virtue of section 148A(3).
144 Time-limits for investigations and reports: Part 4
(1) The CMA shall, within the period of 18 months beginning with the relevant date, prepare its report under section 142 and publish it under section 143(1) or 143A(2) or (as the case may be) give it to the Secretary of State in accordance with section 143(3) or 143A(3).
(1A) For the purposes of subsection (1), the “relevant date” is—
(a) in the case of a report in relation to a restricted PI reference or to a full PI reference which specifies that the Secretary of State does not propose to appoint a public interest expert, the date of the reference;
(b) in the case of a report in relation to a full PI reference which specifies that the Secretary of State proposes to appoint a public interest expert, the earliest of the following—
(i) the date of the appointment of the expert;
(ii) the date on which the Secretary of State gives notice to the CMA that the Secretary of State no longer intends to appoint such an expert;
(iii) the end of the period of 2 months beginning with the date of the reference.
(1B) The CMA may extend, by no more than 6 months, the period within which its report under section 142 is to be prepared and action is to be taken in relation to it under section 143(1) or (3) or (as the case may be) 143A(2) or (3) if it considers that there are special reasons for doing so.
(1C) An extension under subsection (1B) shall come into force when published under section 172.
(1D) No more than one extension is possible under subsection (1B).
(2) The Secretary of State may by order amend —
(a) subsection (1) so as to alter the period of 18 months mentioned in that subsection or any period for the time being mentioned in that subsection in substitution for that period;
(b) subsection (1B) so as to alter the period of 6 months mentioned in that subsection or any period for the time being mentioned in that subsection in substitution for that period.
(3) No alteration shall be made by virtue of subsection (2) 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 (1B) exceeding 6 months.
(4) An order under subsection (2) shall not affect any period of time within which, in relation to a market investigation reference, the CMA is under a duty to prepare its report under section 142 and take action in relation to it under section 143(1) or (3) or (as the case may be) 143A(2) or (3) if the CMA is already under that duty in relation to that reference when the order is made.
(5) Before making an order under subsection (2) the Secretary of State shall consult the CMA and such other persons as he considers appropriate.
145 Restrictions where public interest considerations not finalised: Part 4
(1) The CMA shall terminate its investigation under section 142 if—
(a) the intervention notice concerned mentions a public interest consideration which was not finalised on the giving of that notice or public interest considerations which, at that time, were not finalised;
(b) no other public interest consideration is mentioned in the notice;
(c) at least 24 weeks has elapsed since the giving of the notice; and
(d) the public interest consideration mentioned in the notice has not been finalised within that period of 24 weeks or (as the case may be) none of the public interest considerations mentioned in the notice has been finalised within that period of 24 weeks.
(2) Where the intervention notice concerned mentions a public interest consideration which is not finalised on the giving of the notice, the CMA shall not give its report under section 142 to the Secretary of State in accordance with section 143(3) or (as the case may be) 143A(3) unless the period of 24 weeks beginning with the giving of the intervention notice concerned has expired or the public interest consideration concerned has been finalised.
(3) The CMA shall, in reporting on any of the questions mentioned in section 141(3) or (as the case may be) 141A(4) and (5), disregard any public interest consideration which has not been finalised before the giving of the report.
(4) The CMA shall, in reporting on any of the questions mentioned in section 141(3) or (as the case may be) 141A(4) and (5), disregard any public interest consideration which was not finalised on the giving of the intervention notice concerned and has not been finalised within the period of 24 weeks beginning with the giving of the notice concerned.
(5) Subsections (1) to (4) are without prejudice to the power of the CMA to carry out investigations in relation to any public interest consideration to which it might be able to have regard in its report.
146 Restricted PI references: decision of Secretary of State
(1) Subsection (2) applies where the Secretary of State has received a report of the CMA in relation to a restricted PI reference which—
(a) has been prepared under section 142;
(b) contains the decisions that there is one or more than one adverse effect on competition and, on the question mentioned in section 141(4)(a) and in relation to at least one such adverse effect, that action should be taken by it; and
(c) has been given to the Secretary of State as required by section 143(3).
(2) The Secretary of State shall decide whether—
(a) any eligible public interest consideration is relevant; or
(b) any eligible public interest considerations are relevant;
to any action which is mentioned in the report by virtue of section 141(4)(a) and (c) and which the CMA should take for the purpose of remedying, mitigating or preventing any adverse effect on competition concerned or any detrimental effect on customers so far as it has resulted or may be expected to result from any adverse effect on competition.
(3) The Secretary of State shall make and publish his decision under subsection (2) within the period of 90 days beginning with the receipt of the report of the CMA under section 142.
(4) In this section “eligible public interest consideration” means a public interest consideration which—
(a) was mentioned in the intervention notice concerned; and
(b) was not disregarded by the CMA for the purposes of its report under section 142.
146A Full PI references: decision of Secretary of State
(1) Subsection (2) applies where the Secretary of State has received a report of the CMA in relation to a full PI reference which—
(a) has been prepared under section 142;
(b) contains the decisions of the CMA that there is one or more than one adverse effect on competition and that one or more than one of the features or combinations of features that gave rise to an adverse effect on competition operates or may be expected to operate against the public interest and that, in relation to at least one effect adverse to the public interest concerned, action should be taken by the Secretary of State; and
(c) has been given to the Secretary of State as required by section 143A(3).
(2) The Secretary of State shall decide whether to make an adverse public interest finding in relation to the matter and whether to make no finding at all in the matter.
(3) For the purposes of this Part, the Secretary of State makes an adverse public interest finding in relation to a matter if, in relation to that matter, the Secretary of State decides—
(a) that there is an adverse effect on competition;
(b) that there is one or more than one admissible public interest consideration which is relevant to the matter; and
(c) taking account only of any adverse effect on competition and any relevant admissible public interest consideration or considerations, that any feature or combination of features which gave rise to an adverse effect on competition operates or may be expected to operate against the public interest.
(4) The Secretary of State may make no finding at all in a matter only if the Secretary of State decides that there is no admissible public interest consideration which is relevant to a consideration of the matter concerned.
(5) In deciding whether to make an adverse public interest finding under subsection (2), the Secretary of State shall accept the decision of the CMA as to whether there is an adverse effect on competition in relation to the matter.
(6) The Secretary of State shall make and publish the decision under subsection (2) within the period of 90 days beginning with the receipt of the report of the CMA under section 142.
(7) In this section “admissible public interest consideration” means a public interest consideration which—
(a) was mentioned in the intervention notice concerned; and
(b) was not disregarded by the CMA for the purposes of its report under section 142.
147 Restricted PI references: remedial action by Secretary of State
(1) Subsection (2) applies where the Secretary of State—
(a) has decided under subsection (2) of section 146 within the period required by subsection (3) of that section that an eligible public interest consideration is relevant as mentioned in subsection (2) of that section or eligible public interest considerations are so relevant; and
(b) has published his decision within the period required by subsection (3) of that section.
(2) The Secretary of State may, in relation to any adverse effect on competition identified in the report concerned, take such action under section 159 or 161 as he considers to be—
(a) reasonable and practicable—
(i) to remedy, mitigate or prevent the adverse effect on competition concerned; or
(ii) to remedy, mitigate or prevent 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
(b) appropriate in the light of the eligible public interest consideration concerned or (as the case may be) the eligible public interest considerations concerned.
(3) In making a decision under subsection (2), the Secretary of State shall, in particular, have regard to—
(a) 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; and
(b) the report of the CMA under section 142.
(4) In having regard by virtue of subsection (3) to the report of the CMA under section 142, the Secretary of State shall not challenge the decision of the CMA contained in the report that there is one or more than one adverse effect on competition.
(5) In making a decision under subsection (2), the Secretary of State 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 Secretary of State 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.
(7) In this section “eligible public interest consideration” has the same meaning as in section 146.
147A Full PI references: remedial action by Secretary of State
(1) Subsection (2) applies where the Secretary of State has decided under subsection (2) of section 146A within the period required by subsection (6) of that section to make an adverse public interest finding in relation to a matter and has published the decision within the period so required.
(2) The Secretary of State may take such action under section 159 or 161 as the Secretary of State considers to be reasonable and practicable to remedy, mitigate or prevent any of the effects adverse to the public interest which have resulted from, or may be expected to result from, the features or combinations of features in question.
(3) In making a decision under subsection (2), the Secretary of State shall, in particular, have regard to the report of the CMA under section 142.
(4) In making a decision under subsection (2), the Secretary of State may, in particular, have regard to—
(a) the need to achieve as comprehensive a solution as is reasonable and practicable to the effects adverse to the public interest concerned; and
(b) any detrimental effects on customers so far as resulting from those effects.
148 Restricted PI references: reversion of the matter to CMA
(1) If—
(a) the Secretary of State fails to make and publish his decision under subsection (2) of section 146 within the period required by subsection (3) of that section; or
(b) the Secretary of State decides that no eligible public interest consideration is relevant as mentioned in subsection (2) of that section;
the CMA shall proceed under section 138 as if the report had been prepared and published under section 136 within the period permitted by section 137.
(2) The CMA shall publish the report which has been prepared by it under section 142 (if still unpublished) as soon as it becomes able to proceed by virtue of subsection (1).
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) In relation to proceedings by virtue of subsection (1), the reference in section 138(3) to decisions of the CMA included in its report by virtue of section 134(4) shall be construed as a reference to decisions which were included in the report of the CMA by virtue of section 141(4).
(7) Where the CMA, in proceeding by virtue of subsection (1), intends to proceed in a way which is not consistent with its decisions as included in its report by virtue of section 141(4), it shall not so proceed without the consent of the Secretary of State.
(8) The Secretary of State shall not withhold his consent under subsection (7) unless he believes that the proposed alternative way of proceeding will operate against the public interest.
(9) For the purposes of subsection (8) a proposed alternative way of proceeding will operate against the public interest only if any eligible public interest consideration or considerations outweigh the considerations which have led the CMA to propose proceeding in that way.
(10) In deciding whether to withhold his consent under subsection (7), the Secretary of State shall accept the CMA's view of what, if the only relevant consideration were how to remedy, mitigate or prevent the adverse effect on competition concerned or any detrimental effect on customers so far as resulting from the adverse effect on competition, would be the most appropriate way to proceed.
(11) In this section “eligible public interest consideration” has the same meaning as in section 146.
148A Full PI references: reversion of the matter to CMA
(1) This section applies if—
(a) the Secretary of State decides under section 146A(2) to make no finding at all in the matter; or
(b) the Secretary of State fails to make and publish the decision under subsection (2) of section 146A within the period required by subsection (6) of that section.
(2) The CMA shall proceed under section 138 as if—
(a) a reference under section 131 had been made (in accordance with the requirements imposed by this Part) instead of a full PI reference; and
(b) its report had been prepared and published under section 136 within the period permitted by section 137.
(3) The CMA shall publish the report which has been prepared by it under section 142 (if still unpublished) as soon as it becomes able to proceed by virtue of subsection (2).
(4) In relation to proceedings by virtue of subsection (2), the reference in section 138(3) to decisions of the CMA included in its report by virtue of section 134(4) is to be construed as a reference to decisions which were included in the report of the CMA by virtue of section 141A(6).
(5) Where the CMA becomes under a duty to proceed as mentioned in subsection (2), references in this Part to a reference under section 131, so far as necessary, are to be construed accordingly.
(6) Where the CMA, in proceeding by virtue of subsection (2), intends to proceed in a way which is not consistent with its decisions as included in its report by virtue of section 141A(6), it shall not so proceed without the consent of the Secretary of State.
(7) The Secretary of State shall not withhold consent under subsection (6) unless the Secretary of State believes that the proposed alternative way of proceeding will operate against the public interest.
(8) For the purposes of subsection (7) a proposed alternative way of proceeding will operate against the public interest only if any admissible public interest consideration or considerations outweigh the considerations which have led the CMA to propose proceeding in that way.
(9) In deciding whether to withhold consent under subsection (6), the Secretary of State shall accept the CMA's view of what, if the only relevant consideration were how to remedy, mitigate or prevent the adverse effect on competition concerned or any detrimental effect on customers so far as resulting from the adverse effect on competition, would be the most appropriate way to proceed.
(10) In this section “admissible public interest consideration” has the same meaning as in section 146A.
(1) An intervention notice under section 139(2) shall state—
(a) the proposed undertaking which may be accepted by the CMA;
(b) the notice under section 155(1) or (4);
(c) the public interest consideration or considerations which are, or may be, relevant to the proposal to accept the undertaking; and
(d) where any public interest consideration concerned is not finalised, the proposed timetable for finalising it.
(2) Where the Secretary of State believes that it is or may be the case that two or more public interest considerations are relevant to the proposal to accept the undertaking, he may decide not to mention in the intervention notice such of those considerations as he considers appropriate.
(3) The Secretary of State may at any time revoke an intervention notice which has been given under section 139(2) and which is in force.
(4) An intervention notice under section 139(2) shall come into force when it is given and shall cease to be in force on the occurrence of any of the events mentioned in subsection (5).
(5) The events are—
(a) the acceptance by the CMA with the consent of the Secretary of State of an undertaking which is the same as the proposed undertaking mentioned in the intervention notice by virtue of subsection (1)(a) or which does not differ from it in any material respect;
(b) the decision of the CMA to proceed neither with the proposed undertaking mentioned in the intervention notice by virtue of subsection (1)(a) nor a proposed undertaking which does not differ from it in any material respect; or
(c) the decision of the Secretary of State to revoke the intervention notice concerned.
(A1) Where an intervention notice under subsection 139(1) is in force, the CMA shall not, without the consent of the Secretary of State, accept any proposed undertaking in lieu of a reference under section 154A in relation to the matter concerned.
(1) Where an intervention notice under section 139(2) is in force, the CMA shall not, without the consent of the Secretary of State, accept the proposed undertaking concerned or a proposed undertaking which does not differ from it in any material respect.
(2) The Secretary of State shall withhold his consent if he believes that it is or may be the case that the proposed undertaking will, if accepted, operate against the public interest.
(3) For the purposes of subsection (2) a proposed undertaking will, if accepted, operate against the public interest only if any public interest consideration which is mentioned in the intervention notice concerned and has been finalised, or any public interest considerations which are so mentioned and have been finalised, outweigh the considerations which have led the CMA to propose accepting the undertaking.
(4) In making his decision under subsection (2) the Secretary of State shall accept the CMA's view of what undertakings, if the only relevant consideration were how to remedy, mitigate or prevent the adverse effect on competition concerned or any detrimental effect on customers so far as resulting from the adverse effect on competition, would be most appropriate.
(5) Where a public interest consideration which is mentioned in the intervention notice concerned is not finalised on the giving of the notice, the Secretary of State shall not make his decision as to whether to give his consent under this section before—
(a) the end of the period of 24 weeks beginning with the giving of the intervention notice; or
(b) if earlier, the date on which the public interest consideration concerned has been finalised.
(6) Subject to subsections (2) to (5), the Secretary of State shall not withhold his consent under this section.
151 Public interest intervention cases: interaction with general procedure
(1) Sections 134(1), (1A), (4), (6) and (7), 136(1) to (6), 137(1) to (6), 138 and 138A do not apply in relation to a restricted PI reference or a full PI reference.
(2) Where the Secretary of State revokes an intervention notice which has been given under section 139(1), at a time after the Secretary of State has made a restricted PI reference or a full PI reference, the CMA shall proceed as if the reference concerned had instead been made under section 131 (in accordance with the requirements imposed by this Part).
(3) Where the CMA is proceeding by virtue of subsection (2), the period within which the CMA shall prepare and publish its report under section 136 shall be extended by an additional period of 20 working days.
(4) Where the CMA terminates its investigation under section 145(1), the CMA shall proceed as if the restricted PI reference or (as the case may be) the full PI reference concerned had instead been made by the CMA under section 131 (in accordance with the requirements imposed by this Part).
(5) Where the CMA is proceeding by virtue of subsection (4), the period within which the CMA shall prepare and publish its report under section 136 shall be extended by an additional period of 20 working days.
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7) In this section, “working day” means any day other than—
(a) a Saturday or Sunday, or
(b) a day that is a bank holiday in any part of the United Kingdom under the Banking and Financial Dealings Act 1971.
(1) The CMA shall, in considering whether to make a reference under section 131, bring to the attention of the Secretary of State any case which it believes raises any consideration specified in section 153 unless it believes that the Secretary of State would consider any such consideration immaterial in the context of the particular case.
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) The CMA shall bring to the attention of the Secretary of State any representations about exercising his power under section 153(3) which have been made to the CMA.
(1) The interests of national security are specified in this section.
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) The Secretary of State may by order modify this section for the purpose of specifying in this section a new consideration or removing or amending any consideration which is for the time being specified in this section.
(4) An order under this section may apply in relation to cases under consideration by the CMA, by the Secretary of State or by the appropriate Minister (other than the Secretary of State acting alone) ... before the making of the order as well as cases under consideration on or after the making of the order.
154A Undertakings fully or partially in lieu of references or reports
(1) This section applies where—
(a) no market study notice has been published under section 130A but the CMA considers that it has the power to make a market investigation reference under section 131 and (subject to taking action under this section) intends to make such a reference,
(b) a market study notice has been published under section 130A but no market investigation reference has been made under section 131, or
(c) a market investigation reference has been made under section 131 or 132 but no report under section 136 has been published.
(2) The CMA may accept, from such persons as it considers appropriate, undertakings to take such action as it considers appropriate for the purposes of remedying, mitigating or preventing (to any extent)—
(a) any adverse effect on competition concerned, or
(b) any detrimental effect on customers so far as—
(i) it has resulted from the adverse effect on competition, or
(ii) it may be expected to result from the adverse effect on competition.
(3) An undertaking under this section is known as—
(a) an “undertaking in lieu of a reference” where it is accepted in circumstances where this section applies by virtue of subsection (1)(a) or (b);
(b) an “undertaking in lieu of a report” where it is accepted in circumstances where this section applies by virtue of subsection (1)(c).
(4) The CMA may accept—
(a) undertakings in lieu of a reference either—
(i) instead of making a reference under section 131 (in which case the undertakings are known as “undertakings fully in lieu of a reference”), or
(ii) in addition to making a reference under that section (in which case the undertakings are known as “undertakings partially in lieu of a reference”);
(b) undertakings in lieu of a report either—
(i) instead of publishing a report under section 136 (in which case the undertakings are known as “undertakings fully in lieu of a report”), or
(ii) in addition to publishing a report under that section (in which case the undertakings are known as “undertakings partially in lieu of a report”).
(5) In accepting undertakings fully in lieu of a reference or undertakings fully in lieu of a report, the CMA must, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to—
(a) the adverse effect on competition concerned, and
(b) any detrimental effects on customers so far as resulting from the adverse effect on competition.
(6) In accepting an undertaking under this section, the CMA may, in particular, have regard to the effect of any action on any relevant customer benefits of the feature or features of the market or markets concerned.
(7) Where no detrimental effect on customers has yet resulted from an adverse effect on competition, the CMA may not accept an undertaking under this section to remedy, mitigate or prevent a detrimental effect on customers so far as it may be expected to result from that adverse effect on competition unless the adverse effect on competition is also being remedied, mitigated or prevented (whether or not by the same undertaking).
(8) An undertaking under this section—
(a) comes into force when accepted;
(b) may be varied or superseded by another undertaking;
(c) may be released by the CMA.
(9) The CMA must, as soon as reasonably practicable, consider any representations received by it in relation to varying or releasing an undertaking under this section.
(10) This section is subject to sections 150 and 155.
(1) Before accepting an undertaking under section 154A (other than an undertaking under that section which varies an undertaking under that section but not in any material respect), the CMA shall—
(a) publish notice of the proposed undertaking; and
(b) consider any representations made in accordance with the notice and not withdrawn.
(2) A notice under subsection (1) shall state—
(a) that the CMA proposes to accept the undertaking;
(b) the purpose and effect of the undertaking;
(c) the situation that the undertaking is seeking to deal with;
(d) any other facts which the CMA considers justify the acceptance of the undertaking;
(e) a means of gaining access to an accurate version of the proposed undertaking at all reasonable times; and
(f) the period (not less than 15 days starting with the date of publication of the notice) within which representations may be made in relation to the proposed undertaking.
(3A) The matters to be included in a notice under subsection (1) by virtue of subsection (2) include, in particular, the adverse effect on competition, and any detrimental effect on customers so far as resulting from the adverse effect on competition, which the CMA has identified.
(4) The CMA shall not accept the undertaking with modifications unless it—
(a) publishes notice of the proposed modifications; and
(b) considers any representations made in accordance with the notice and not withdrawn.
(5) A notice under subsection (4) shall state—
(a) the proposed modifications;
(b) the reasons for them; and
(c) the period (not less than 7 days starting with the date of the publication of the notice under subsection (4)) within which representations may be made in relation to the proposed modifications.
(6) If, after publishing notice under subsection (1) or (4), the CMA decides—
(a) not to accept the undertaking concerned; and
(b) not to proceed by virtue of subsection (8) or (9);
it shall publish notice of that decision.
(7) As soon as practicable after accepting an undertaking to which this section applies, the CMA shall—
(a) serve a copy of the undertaking on any person by whom it is given; and
(b) publish the undertaking.
(8) The requirements of subsection (4) (and those of subsection (1)) shall not apply if the CMA—
(a) has already published notice under subsection (1) but not subsection (4) in relation to the proposed undertaking; and
(b) considers that the modifications which are now being proposed are not material in any respect.
(9) The requirements of subsection (4) (and those of subsection (1)) shall not apply if the CMA—
(a) has already published notice under subsections (1) and (4) in relation to the matter concerned; and
(b) considers that the further modifications which are now being proposed do not differ in any material respect from the modifications in relation to which notice was last given under subsection (4).
(10) Paragraphs 6 to 8 (but not paragraph 9) of Schedule 10 (procedural requirements before terminating undertakings) shall apply in relation to the proposed release of undertakings under section 154A (other than in connection with accepting an undertaking under that section which varies or supersedes an undertaking under that section) as they apply in relation to the proposed release of undertakings under section 73.
(A1) No market investigation reference shall be made by the CMA or the appropriate Minister in relation to any feature, or combination of features, of a market in the United Kingdom for goods or services if—
(a) the CMA has accepted an undertaking or group of undertakings under section 154A within the previous 12 months;
(b) any feature or combination of features to which the undertaking or group of undertakings relates is a feature or combination of features to which the reference would relate; and
(c) the goods or services to which the undertaking or group of undertakings relates are of the same description as the goods or services to which the reference would relate.
(1) No ordinary reference shall be made by the CMA or the appropriate Minister in relation to any feature, or combination of features, of a market in the United Kingdom for goods or services if—
(a) the CMA has , instead of making an ordinary reference, accepted an undertaking or group of undertakings in lieu of a reference under section 154A within the previous 12 months; ...
(ab) any feature or combination of features to which the undertaking or group of undertakings relates is a feature or combination of features to which the reference would relate; and
(b) the goods or services to which the undertaking or group of undertakings relates are of the same description as the goods or services to which the reference would relate.
(2) Subsections (A1) and (1) do not prevent the making of a market investigation reference if—
(a) the CMA considers that any undertaking concerned has been breached and has given notice of that fact to the person responsible for giving the undertaking; or
(b) the person responsible for giving any undertaking concerned supplied, in connection with the matter, information to the CMA which was false or misleading in a material respect.
(3) The expiry of the period mentioned in section 131B(4) does not prevent the making of a market investigation reference if the CMA has accepted an undertaking or group of undertakings under section 154A and—
(a) the CMA considers that any undertaking concerned has been breached and has given notice of that fact to the person responsible for giving the undertaking; or
(b) the person responsible for giving any undertaking concerned supplied, in connection with the matter, information to the OFT which was false or misleading in a material respect.
(4) Where the CMA has, under section 154A, accepted an undertaking, or group of undertakings, in lieu of a report the CMA is not required by virtue of section 134 to make the decisions referred to in subsections (1) and (1A) of that section in relation to a feature, or features, to which the undertaking, or group of undertakings, relate.
(5) Accordingly, a report under section 136 is not required, and the duty under section 138 does not arise, if the CMA accepts an undertaking fully in lieu of a report.
(6) Instead, where the CMA accepts an undertaking fully in lieu of a report the CMA must prepare and publish a report containing—
(a) the CMA’s decision to accept the undertaking,
(b) the reasons for the decision, and
(c) such information as the CMA considers appropriate for facilitating a proper understanding of the decision and its reasons for the decision.
(7) For provision equivalent to subsection (6) in the case where the CMA accepts an undertaking partially in lieu of a report, see section 136(2)(aa).
(1) Subsection (2) applies where—
(a) a market investigation reference has been made;
(b) a report has been published under section 136 within the period permitted by section 137 or (as the case may be) a report prepared under section 142 and given to the Secretary of State under section 143(3) or (as the case may be) 143A(3) within the period permitted by section 144 has been published; and
(c) the market investigation reference concerned is not finally determined.
(2) The relevant authority may, for the purpose of preventing pre-emptive action, accept, from such persons as the relevant authority considers appropriate, undertakings to take such action as the relevant authority considers appropriate.
(2A) Subsection (2B) applies where—
(a) subsection (1)(a) to (c) applies; and
(b) the relevant authority has reasonable grounds for suspecting that pre-emptive action has or may have been taken.
(2B) The relevant authority may, for the purpose of restoring the position to what it would have been had the pre-emptive action not been taken or otherwise for the purpose of mitigating its effects, accept, from such persons as the relevant authority considers appropriate, undertakings to take such action as the relevant authority considers appropriate.
(2C) A person may, with the consent of the relevant authority, take action of a particular description where the action would otherwise constitute a contravention of an undertaking accepted under this section.
(3) An undertaking under this section—
(a) shall come into force when accepted;
(b) may be varied or superseded by another undertaking; and
(c) may be released by the relevant authority.
(4) An undertaking under this section shall, if it has not previously ceased to be in force, cease to be in force when the market investigation reference is finally determined.
(5) The relevant authority shall, as soon as reasonably practicable, consider any representations received by the relevant authority in relation to varying or releasing an undertaking under this section.
(6) In this section and section 158—
“pre-emptive action” means action which might impede the taking of any action under section 138(2) , 147(2) or (as the case may be) 147A(2) in relation to the market investigation reference concerned; and
“the relevant authority” means—
in the case of a restricted PI reference or a full PI reference, the Secretary of State;
in any other case, the CMA.
(1) Subsection (2) applies where—
(a) a market investigation reference has been made;
(b) a report has been published under section 136 within the period permitted by section 137 or (as the case may be) a report prepared under section 142 and given to the Secretary of State under section 143(3) or (as the case may be) 143A(3) within the period permitted by section 144 has been published; and
(c) the market investigation reference concerned is not finally determined.
(2) The relevant authority may by order, for the purpose of preventing pre-emptive action—
(a) prohibit or restrict the doing of things which the relevant authority considers would constitute pre-emptive action;
(b) impose on any person concerned obligations as to the carrying on of any activities or the safeguarding of any assets;
(c) provide for the carrying on of any activities or the safeguarding of any assets either by the appointment of a person to conduct or supervise the conduct of any activities (on such terms and with such powers as may be specified or described in the order) or in any other manner;
(d) do anything which may be done by virtue of paragraph 19 of Schedule 8.
(2A) Subsection (2B) applies where—
(a) subsection (1)(a) to (c) applies; and
(b) the relevant authority has reasonable grounds for suspecting that pre-emptive action has or may have been taken.
(2B) The relevant authority may by order, for the purpose of restoring the position to what it would have been had the pre-emptive action not been taken or otherwise for the purpose of mitigating its effects—
(a) do anything mentioned in subsection (2)(b) to (d);
(b) impose such other obligations, prohibitions or restrictions as it considers appropriate for that purpose.
(2C) A person may, with the consent of the relevant authority, take action of a particular description where the action would otherwise constitute a contravention of an undertaking accepted under this section.
(3) An order under this section—
(a) shall come into force at such time as is determined by or under the order; and
(b) may be varied or revoked by another order.
(4) An order under this section shall, if it has not previously ceased to be in force, cease to be in force when the market investigation reference is finally determined.
(5) The relevant authority shall, as soon as reasonably practicable, consider any representations received by the relevant authority in relation to varying or revoking an order under this section.
(1) The CMA may, in accordance with section 138, accept, from such persons as it considers appropriate, undertakings to take action specified or described in the undertakings.
(2) The Secretary of State may, in accordance with section 147 or (as the case may be) 147A, accept, from such persons as he considers appropriate, undertakings to take action specified or described in the undertakings.
(3) An undertaking under this section shall come into force when accepted.
(4) An undertaking under subsection (1) or (2) may be varied or superseded by another undertaking under that subsection.
(5) An undertaking under subsection (1) may be released by the CMA and an undertaking under subsection (2) may be released by the Secretary of State.
(6) The CMA or (as the case may be) the Secretary of State shall, as soon as reasonably practicable, consider any representations received by it or (as the case may be) him in relation to varying or releasing an undertaking under this section.
160 Order-making power where final undertakings not fulfilled: Part 4
(1) Subsection (2) applies where the relevant authority considers that—
(a) an undertaking accepted by the relevant authority under section 159 has not been, is not being or will not be fulfilled; or
(b) in relation to an undertaking accepted by the relevant authority under that section, information which was false or misleading in a material respect was given to a relevant person by the person giving the undertaking before the relevant authority decided to accept the undertaking.
(1A) In subsection (1), a “relevant person” means—
(a) in a case where the relevant authority is the CMA, the CMA;
(b) in a case where the relevant authority is the Secretary of State, the Secretary of State or the CMA.
(2) The relevant authority may, for any of the purposes mentioned in section 138(2), 147(2) or (as the case may be) 147A(2), make an order under this section.
(3) Subsections (3) to (6) of section 138 or 147 or (as the case may be) subsections (3) and (4) of section 147A shall apply for the purposes of subsection (2) above as they apply for the purposes of that section.
(4) An order under this section may contain—
(a) anything permitted by Schedule 8; and
(b) such supplementary, consequential or incidental provision as the relevant authority considers appropriate.
(5) An order under this section—
(a) shall come into force at such time as is determined by or under the order;
(b) may contain provision which is different from the provision contained in the undertaking concerned; and
(c) may be varied or revoked by another order.
(6) The Secretary of State shall not vary or revoke an order made by him under this section unless the CMA advises that such a variation or revocation is appropriate by reason of a change of circumstances.
(7) In this section “the relevant authority” means—
(a) in the case of an undertaking accepted under section 159 by the CMA, the CMA; and
(b) in the case of an undertaking accepted under that section by the Secretary of State, the Secretary of State.
(1) The CMA may, in accordance with section 138, make an order under this section.
(2) The Secretary of State may, in accordance with section 147 or (as the case may be) 147A, make an order under this section.
(3) An order under this section may contain—
(a) anything permitted by Schedule 8; and
(b) such supplementary, consequential or incidental provision as the person making it considers appropriate.
(4) An order under this section—
(a) shall come into force at such time as is determined by or under the order; and
(b) may be varied or revoked by another order.
(5) The Secretary of State shall not vary or revoke an order made by him under this section unless the CMA advises , in accordance with section 162(3) or section 162A(8), that such a variation or revocation is appropriate ....
161A Acceptance of enforcement undertakings: Part 4
(1) The relevant authority may not accept an enforcement undertaking from a person unless it has provided the person with information about the possible consequences of failing to comply with the undertaking.
(2) In subsection (1), “the relevant authority” means—
(a) in the case of a restricted PI reference or a full PI reference, the Secretary of State;
(b) in any other case, the CMA.
161B Implementation trials: purpose and interpretation
(1) This section and sections 161C to 161E make provision in relation to the acceptance of undertakings and making of orders by a relevant authority on a trial basis for the purpose of assessing the effectiveness of qualifying remedial action (and the acceptance of undertakings and making of orders on that basis is referred to in this Part as an “implementation trial”).
(2) In this section and in sections 161C to 161E “relevant authority” means the CMA or the Secretary of State.
(3) In this Part—
“implementation trial measure” means an undertaking accepted, or order made, under section 161C (and references to the imposition of such a measure are to be read as the acceptance of an undertaking or the making of an order, as the case may be);
“implementation trial period” means, in relation to an implementation trial measure, the period—
beginning with the day on which the relevant authority begins the implementation trial, and
ending with the last day on which the implementation trial measure is to have effect (see subsections (4) and (5));
“qualifying remedial action” means remedial action in respect of—
a matter concerning the provision or publication of information to consumers (whether directly or through an intermediary), or
any other matter specified in regulations made by the Secretary of State;
“relevant adverse effect” means—
where the relevant authority is the CMA, an adverse effect on competition identified in the report mentioned in section 138(1);
where the relevant authority is the Secretary of State—
an adverse effect on competition identified in the report mentioned in section 146(1);
an effect adverse to the public interest identified in the report mentioned in section 146A(1);
“remedial action” means an action—
where the relevant authority is the CMA, to be taken in accordance with section 138(2) or section 162A(5);
where the relevant authority is the Secretary of State, to be taken in accordance with section 147(2) or 147A(2) (as the case may be).
(4) The last day on which an implementation trial measure is to have effect is the earlier of—
(a) the day specified under section 161D(5)(b)(ii), and
(b) the day on which action is taken under section 138(2), 147(2) or 147A(2) (as the case may be) in relation to the relevant adverse effect which the relevant authority considers concerns the same qualifying matter.
(5) But where—
(a) an implementation trial measure is imposed in accordance with this section, and
(b) the CMA extends, under section 138A(3), the period within which its duty under section 138(2) is required to be discharged in accordance with section 138A(A3) in relation to the measure,
the last day on which the implementation trial measure is to have effect is the last day of that period as so extended.
(1) The CMA may, in relation to a market investigation reference, begin an implementation trial where—
(a) subsection (2) of section 138 applies (see subsection (1) of that section), and
(b) the CMA has not taken, but is minded to take, qualifying remedial action.
(2) The Secretary of State may, in relation to a restricted PI reference or a full PI reference, begin an implementation trial where—
(a) subsection (2) of section 147, or subsection (2) of 147A (as the case may be), applies (see subsection (1) of the section in question), and
(b) the Secretary of State has not taken, but is minded to take, qualifying remedial action.
(3) Subsections (1) and (2) are subject to the duty to publish notices in section 161D.
(4) The relevant authority begins an implementation trial by—
(a) accepting, from such persons as the relevant authority considers appropriate, undertakings under this section to take action specified or described in the undertakings, or
(b) making an order under this section,
for the purposes of assessing, during the implementation trial period, the likely effectiveness of the qualifying remedial action.
(5) Where the relevant authority begins an implementation trial, the relevant authority may also—
(a) accept, from such persons as the relevant authority considers appropriate, undertakings under this section to take action specified or described in the undertakings, or
(b) make an order under this section,
in the circumstances mentioned in subsection (6).
(6) The circumstances are that the relevant authority considers that accepting the undertakings or making the order would be likely to contribute to, or otherwise be of use for purposes of, remedying, mitigating or preventing, during the implementation trial period—
(a) an adverse effect on competition identified in the report concerned or (as the case may be) an effect adverse to the public interest which has resulted from, or may be expected to result from, the features or combinations of features mentioned;
(b) any detrimental effect on customers so far as it has resulted from, or may be expected to result from, any such adverse effect on competition.
(1) Before the relevant authority begins an implementation trial under section 161C(4), the relevant authority must publish—
(a) a provisional implementation trial notice, and
(b) a final implementation trial notice (but see subsection (4)).
(2) A provisional implementation trial notice must—
(a) specify each implementation trial measure the relevant authority is minded to impose for the purposes of the implementation trial;
(b) specify the relevant adverse effect with which each measure is seeking to deal;
(c) specify any other facts which the relevant authority considers justify the imposition of each measure;
(d) specify, in relation to each measure—
(i) how the relevant authority intends to assess the likely effect of the measure, and
(ii) the last day on which the relevant authority intends for the measure to have effect;
(e) invite the making of representations by the persons on which the relevant authority is minded to impose one or more implementation trial measure (“implementation trial participants”) about the matters set out in the notice;
(f) specify the means by which, and the time by which, such representations must be made.
(3) The time specified under subsection (2)(f) by which representations must be made must be at least 15 days after the date on which the provisional implementation trial notice is published.
(4) A relevant authority may publish a final implementation trial notice only where—
(a) the relevant authority has published a provisional implementation trial notice under subsection (1),
(b) the time for the implementation trial participants to make representations to the relevant authority in accordance with the notice has expired, and
(c) after considering such representations (if any), it appears to the relevant authority that it is appropriate to begin an implementation trial under section 161C(4).
(5) A final implementation trial notice must specify—
(a) the implementation trial measures the relevant authority intends to impose for the purposes of the implementation trial,
(b) in relation to each such measure—
(i) how the relevant authority intends to assess the likely effect of the measure, and
(ii) the last day on which the measure is to have effect.
(1) The relevant authority may not accept an undertaking from a person under section 161C unless it has provided the person with information about the possible consequences of failing to comply with the undertaking.
(2) The CMA may not begin an implementation trial under section 161C(4)—
(a) in respect of qualifying remedial action that would be taken in accordance with subsection (2) of section 138, after the end of the period within which the CMA would otherwise have been required to discharge its duty under that subsection;
(b) in respect of qualifying remedial action that would be taken in accordance with section 162A(5), after the end of the period mentioned in section 162A(6).
(3) Subsections (3), (5) and (6) of section 138 apply to action taken by the CMA under section 161C as they apply to action taken by the CMA under section 138(2).
(4) Subsections (3)(b), (4), (5) and (6) of section 147 apply to action taken by the Secretary of State under section 161C in relation to a restricted PI reference as they apply to action taken by the Secretary of State under section 147(2).
(5) Subsections (3) and (4)(b) of section 147A apply to action taken by the Secretary of State under section 161C in relation to a full PI reference as they apply to action taken by the Secretary of State under section 147A(2).
(6) Subsections (3) to (5) of section 159 apply to undertakings accepted under section 161C as they apply to undertakings accepted under section 159(1).
(7) Subsections (3) and (4) of section 161 apply to orders made under section 161C as they apply to orders made under section 161(1).
162 Duty of CMA to monitor the carrying out of undertakings and orders: Part 4
(1) The CMA shall keep under review the carrying out of any enforcement undertaking or any enforcement order.
(2) The CMA shall, in particular, from time to time consider—
(a) whether an enforcement undertaking or enforcement order has been or is being complied with;
(b) whether, by reason of any change of circumstances, an enforcement undertaking is no longer appropriate and—
(i) one or more of the parties to it can be released from it; or
(ii) it needs to be varied or to be superseded by a new enforcement undertaking; and
(c) whether, by reason of any change of circumstances, an enforcement order is no longer appropriate and needs to be varied or revoked.
(3) The CMA shall give ... the Secretary of State such advice as it considers appropriate in relation to—
(a) any possible variation or release by ...the Secretary of State of an enforcement undertaking accepted by ... him;
(b) any possible new enforcement undertaking to be accepted by ... the Secretary of State so as to supersede another enforcement undertaking given to ... the Secretary of State;
(c) any possible variation or revocation by ... the Secretary of State of an enforcement order made by ... the Secretary of State;
(d) any possible enforcement undertaking to be accepted by ... the Secretary of State instead of an enforcement order or any possible enforcement order to be made by ... the Secretary of State instead of an enforcement undertaking; or
(e) the enforcement by virtue of section 167(6) and (7) of any enforcement undertaking or enforcement order.
(4) The CMA shall take such action as it considers appropriate in relation to—
(a) any possible variation or release by it of an undertaking accepted by it under section 154A;
(b) any possible new undertaking to be accepted by it under section 154A so as to supersede another undertaking given to it under that section;
(ba) any possible variation or release by it of an enforcement undertaking accepted by it;
(bb) any possible new enforcement undertaking to be accepted by it so as to supersede another enforcement undertaking given to it;
(bc) any possible variation or revocation by it of an enforcement order made by it;
(bd) any possible enforcement undertaking to be accepted by it instead of an enforcement order or any possible enforcement order to be made by it instead of an enforcement undertaking; or
(c) the enforcement by it by virtue of section 167(6) of any enforcement undertaking or enforcement order.
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8) In this Part—
“enforcement order” means an order made under section 158, 160 or 161; and
“enforcement undertaking” means an undertaking accepted under section 154A, 157 or 159.
162A Duty of CMA to monitor effectiveness of undertakings and orders: Part 4
(1) The CMA must keep under review the effectiveness of enforcement undertakings accepted under this Part and enforcement orders made under this Part.
(2) The CMA must, whenever requested to do so by the Secretary of State and otherwise from time to time, prepare a report of its findings under subsection (1).
(3) The CMA must—
(a) give a copy of any report prepared by it under subsection (2) to the Secretary of State, and
(b) publish the report.
(4) Subsection (5) applies, in relation to an adverse effect on competition identified in a report mentioned in section 138(1), where—
(a) the report was published within the previous 10 years,
(b) the CMA last took action in accordance with section 138(2) or subsection (5) of this section no less than two years ago, and
(c) the CMA concludes, as a result of a review under subsection (1), that the action mentioned in paragraph (b) has been ineffective for the purposes mentioned in that section.
(5) The CMA must take such action as it considers appropriate for the purposes mentioned in section 138(2) in relation to—
(a) any possible variation or release by the CMA of an enforcement undertaking accepted by it;
(b) any possible new enforcement undertaking to be accepted by the CMA so as to supersede another enforcement undertaking given to it;
(c) any possible variation or revocation by the CMA of an enforcement order made by it;
(d) any possible enforcement undertaking to be accepted by the CMA instead of an enforcement order made by it, or any possible enforcement order to be made by the CMA instead of an enforcement undertaking accepted by it.
(6) Where the CMA decides to take action under subsection (5), the CMA must take the action within the period of six months beginning with the date on which that decision is published under section 172(2)(h).
(7) Subsection (8) applies, in relation to an adverse effect on competition or an effect adverse to the public interest identified in a report mentioned in section 146(1) or 146A(1) (as the case may be), where—
(a) the report was laid before each House of Parliament in accordance with section 172(10) within the previous 10 years,
(b) the Secretary of State last took action in accordance with section 142(2) or 147A(2) (as the case may be) no less than two years ago, and
(c) the CMA concludes, as a result of a review under subsection (1), that action taken in accordance with that section has been ineffective for the purposes mentioned in that section.
(8) The CMA must give the Secretary of State such advice as it considers appropriate for the purposes mentioned in section 147(2) or 147A(2) (as the case may be) in relation to—
(a) any possible variation or release by the Secretary of State of an enforcement undertaking accepted by the Secretary of State;
(b) any possible new enforcement undertaking to be accepted by the Secretary of State under that section so as to supersede another enforcement undertaking given to the Secretary of State;
(c) any possible variation or revocation by the Secretary of State of an enforcement order made by the Secretary of State;
(d) any possible enforcement undertaking to be accepted by the Secretary of State instead of an enforcement order, or any possible enforcement order to be made by the Secretary of State instead of an enforcement undertaking accepted under that section.
162B Power to vary etc undertakings and orders: implementation trials
(1) This section applies in relation to implementation trial measures imposed in accordance with section 161C.
(2) The CMA must keep under review the effectiveness of the implementation trial measures.
(3) The CMA must, in particular, from time to time consider—
(a) whether an implementation trial measure has been or is being complied with;
(b) whether an undertaking accepted under section 161C is no longer appropriate and—
(i) one or more of the parties to it can be released from it; or
(ii) it needs to be varied or to be superseded by a new undertaking under that section; and
(c) whether an order made under section 161C is no longer appropriate and needs to be varied or revoked.
(4) The CMA must, within the implementation trial period, give the Secretary of State such advice as it considers appropriate in relation to—
(a) any possible variation or release by the Secretary of State of an undertaking accepted by the Secretary of State under section 161C;
(b) any possible new undertaking to be accepted by the Secretary of State under that section so as to supersede another undertaking given to the Secretary of State under that section;
(c) any possible variation or revocation by the Secretary of State of an order made by the Secretary of State under that section;
(d) any possible undertaking to be accepted by the Secretary of State under that section instead of an order made under that section, or any possible order to be made by the Secretary of State under that section instead of an undertaking accepted under that section.
(5) The relevant authority must, within the implementation trial period, take such action as it considers appropriate in relation to—
(a) any possible variation or release by the relevant authority of an undertaking accepted by it under section 161C;
(b) any possible new undertaking to be accepted by the relevant authority under that section so as to supersede another undertaking given to it under that section;
(c) any possible variation or revocation by the relevant authority of an order made by it under that section;
(d) any possible undertaking to be accepted by the relevant authority under that section instead of an order made under that section, or any possible order to be made by the relevant authority under that section instead of an undertaking accepted under that section.
(6) But the relevant authority may not do anything under this section that would result in—
(a) the implementation trial period being extended;
(b) an order or undertaking made under section 161C being out of compliance with any provision of that section.
(7) In this section “relevant authority” has the meaning given by section 161B(2).
(8) Subsections (3), (5) and (6) of section 138 apply to action taken by the CMA under this section as those subsections apply to action taken by the CMA under section 138(2).
(9) Subsections (3)(b), (5) and (6) of section 147 apply to action taken by the Secretary of State under this section in respect of a restricted PI reference as those subsections apply to action taken by the Secretary of State under section 147(2).
(10) Subsection (3) of section 147A applies to action taken by the Secretary of State under this section in respect of a full PI reference as that subsection applies to action taken by the Secretary of State under section 147A(2).
163 Role of CMA in relation to undertakings and orders in public interest cases: Part 4
(1) Subsections (2) and (3) apply where ... the Secretary of State ... is considering whether to accept undertakings under section 157 or 159.
(2) The Secretary of State may require the CMA to consult with such persons as the Secretary of State considers appropriate with a view to discovering whether they will offer undertakings which the Secretary of State would be prepared to accept under section 157 or (as the case may be) 159.
(3) The Secretary of State may require the CMA to report to the Secretary of State on the outcome of the CMA's consultations within such period as the Secretary of State may require.
(4) A report under subsection (3) shall, in particular, contain advice from the CMA as to whether any undertakings offered should be accepted by the Secretary of State under section 157 or (as the case may be) 159.
(5) The powers conferred on the Secretary of State by subsections (1) to (4) are without prejudice to the power of the Secretary of State to consult the persons concerned ....
(6) If asked by the Secretary of State for advice in relation to the taking of enforcement action (whether or not by way of undertakings) in a particular case, the CMA shall give such advice as it considers appropriate.