(1) A special intervention notice shall state—
(a) the special merger situation concerned; and
(b) the consideration specified in section 58 or considerations so specified which are, or may be, relevant to the special merger situation concerned.
(2) Where the Secretary of State believes that it is or may be the case that two or more considerations specified in section 58 are relevant to a consideration of the special merger situation concerned, he may decide not to mention in the special intervention notice such of those considerations as he considers appropriate.
(3) A special intervention notice 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.
(4) For the purposes of this Part, a matter to which a special intervention notice relates is finally determined under this Chapter if—
(a) the time within which the CMA or (if relevant) OFCOM is to report to the Secretary of State under section 61 or (as the case may be) 61A has expired and no such report has been made;
(b) the Secretary of State decides to accept an undertaking or group of undertakings under paragraph 3 of Schedule 7 instead of making a reference under section 62;
(c) the Secretary of State otherwise decides not to make a reference under that section;
(d) the CMA cancels such a reference under section 64(1);
(e) the time within which theCMA is to prepare a report under section 65 and give it to the Secretary of State has expired and no such report has been prepared and given to the Secretary of State;
(f) the time within which the Secretary of State is to make and publish a decision under section 66(2) has expired and no such decision has been made and published;
(g) the Secretary of State decides under subsection (2) of section 66 otherwise than as mentioned in subsection (5) of that section;
(h) the Secretary of State decides under subsection (2) of section 66 as mentioned in subsection (5) of that section but decides neither to accept an undertaking under paragraph 9 of Schedule 7 nor to make an order under paragraph 11 of that Schedule; or
(i) the Secretary of State decides under subsection (2) of section 66 as mentioned in subsection (5) of that section and accepts an undertaking under paragraph 9 of Schedule 7 or makes an order under paragraph 11 of that Schedule.
(5) For the purposes of this Part the time when a matter to which a special intervention notice relates is finally determined under this Chapter is—
(a) in a case falling within subsection (4)(a), (e) or (f), the expiry of the time concerned;
(b) in a case falling within subsection (4)(b), the acceptance of the undertaking or group of undertakings concerned;
(c) in a case falling within subsection (4)(c), (d) or (g), the making of the decision concerned;
(d) in a case falling within subsection (4)(h), the making of the decision neither to accept an undertaking under paragraph 9 of Schedule 7 nor to make an order under paragraph 11 of that Schedule; and
(e) in a case falling within subsection (4)(i), the acceptance of the undertaking concerned or (as the case may be) the making of the order concerned.
(1) Subsection (2) applies where the Secretary of State has given a special intervention notice in relation to a special merger situation.
(2) The CMA shall, within such period as the Secretary of State may require, give a report to the Secretary of State in relation to the case.
(3) The report shall contain—
(a) advice from the CMA on the considerations relevant to the making of a reference under section 22 or 33 which are also relevant to the Secretary of State’s decision as to whether to make a reference under section 62; and
(b) a summary of any representations about the case which have been received by the CMA and which relate to any consideration mentioned in the special intervention notice concerned (other than a consideration which, at the time of the giving of the notice, was specified in section 58(2A) to (2C)) and which is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 62.
(4) The report shall include a decision as to whether the CMA believes (disregarding section 59(3B)(b)) that it is, or may be, the case that a special merger situation has been created or (as the case may be) arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a special merger situation.
(4A) The report may, in particular, contain a summary of any representations about the case which have been received by the CMA and which relate to any consideration which—
(a) is mentioned in the special intervention notice concerned and, at the time of the giving of that notice, was specified in section 58(2A) to (2C); and
(b) is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 62.
(5) The report may, in particular, include advice and recommendations on any consideration mentioned in the special intervention notice concerned and which is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 62.
(6) The CMA shall carry out such investigations as it considers appropriate for the purposes of producing a report under this section.
61A Additional investigation and report by OFCOM: certain media mergers
(1) Subsection (2) applies where—
(a) the Secretary of State has given a special intervention notice in relation to a special merger situation; and
(b) the special intervention notice mentions any consideration which, at the time of the giving of the notice, was specified in section 58(2A) to (2C).
(2) OFCOM shall, within such period as the Secretary of State may require, give a report to the Secretary of State on the effect of the consideration or considerations concerned on the case.
(3) The report shall contain—
(a) advice and recommendations on any consideration which—
(i) is mentioned in the special intervention notice concerned and, at the time of the giving of that notice, was specified in section 58(2A) to (2C); and
(ii) is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 62; and
(b) a summary of any representations about the case which have been received by OFCOM and which relate to any such consideration.
(4) OFCOM shall carry out such investigations as they consider appropriate for the purposes of producing a report under this section.
62 Power of Secretary of State to refer the matter
(1) Subsection (2) applies where the Secretary of State—
(a) has given a special intervention notice in relation to a special merger situation; and
(b) has received a report of the CMA under section 61, and any report of OFCOM which is required by virtue of section 61A, in relation to the matter.
(2) The Secretary of State may 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 believes that it is or may be the case that—
(a) a special merger situation has been created;
(b) one or more than one consideration mentioned in the special intervention notice is relevant to a consideration of the special merger situation concerned; and
(c) taking account only of the relevant consideration or considerations concerned, the creation of that situation operates or may be expected to operate against the public interest.
(3) The Secretary of State may 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 believes that it is or may be the case that—
(a) arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a special merger situation;
(b) one or more than one consideration mentioned in the special intervention notice is relevant to a consideration of the special merger situation concerned; and
(c) taking account only of the relevant consideration or considerations concerned, the creation of that situation may be expected to operate against the public interest.
(4) No reference shall be made under this section if the making of the reference is prevented by . . . paragraph 4 of Schedule 7.
(5) The Secretary of State, in deciding whether to make a reference under this section, shall accept the decision of the CMA included in its report under section 61 by virtue of subsection (4) of that section.
(6) A reference under this section shall, in particular, specify—
(a) the subsection of this section under which it is made;
(b) the date on which it is made; and
(c) the consideration or considerations mentioned in the special intervention notice which the Secretary of State believes are, or may be, relevant to a consideration of the special merger situation concerned.
Where a reference is made to the chair of the CMA under section 62 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 63 to 65;
(b) where a reference is treated by virtue of section 64(2) as having been made under section 62(2), section 23(9)(ab) (as it has effect by virtue of section 59(6));
(c) sections 104, so far as relating to any decision mentioned in paragraph (a)(iii) of the definition of relevant decision in subsection (6) of that section, and 104A;
(d) section 107, so far as relating to anything done on behalf of the CMA by the group;
(e) section 109, where the permitted purpose 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;
(f) sections 110 to 115, so far as relating to a notice given under section 109 on behalf of the CMA by the group;
(g) section 118(4);
(h) section 120(5)(b), so far as relating to a decision of the group.
63 Questions to be decided on references under section 62
(1) The CMA shall, on a reference under section 62(2), decide whether a special merger situation has been created.
(2) The CMA shall, on a reference under section 62(3), decide whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a special merger situation.
(3) If the CMA decides that a special merger situation has been created or that arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a special merger situation, it shall, on a reference under section 62, decide whether, taking account only of the consideration or considerations mentioned in the reference, the creation of that situation operates or may be expected to operate against the public interest.
(4) The CMA shall, if it has decided on a reference under section 62 that the creation of a special merger situation operates or may be expected to operate against the public interest, decide the following additional questions—
(a) whether action should be taken by the Secretary of State under section 66 for the purpose of remedying, mitigating or preventing any of the effects adverse to the public interest which have resulted from, or may be expected to result from, the creation of the special merger situation 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 which have resulted from, or may be expected to result from, the creation of the special merger situation 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.
64 Cancellation and variation of references under section 62
(1) The CMA shall cancel a reference under section 62(3) if it considers that the proposal to make arrangements of the kind mentioned in that reference has been abandoned.
(2) The CMA may, if it considers that doing so is justified by the facts (including events occurring on or after the making of the reference concerned), treat a reference made under subsection (2) or (3) of section 62 as if it had been made under subsection (3) or (as the case may be) (2) of that section; and, in such cases, references in this Part to references under those enactments shall, so far as may be necessary, be construed accordingly.
(3) Where, by virtue of subsection (2), the CMA treats a reference made under subsection (2) or (3) of section 62 as if it had been made under subsection (3) or (as the case may be) (2) of that section, paragraphs ... 2, 7 and 8 of Schedule 7 shall, in particular, apply as if the reference had been made under subsection (3) or (as the case may be) (2) of that section instead of under subsection (2) or (3) of that section.
(4) Subsection (5) applies in relation to ... any order made under paragraph 2 of Schedule 7, which is in force immediately before the CMA, by virtue of subsection (2), treats a reference made under subsection (2) or (3) of section 62 as if it had been made under subsection (3) or (as the case may be) (2) of that section.
(5) The ... order shall, so far as applicable, continue in force as if—
(a) in the case of an ... order which relates to a reference under subsection (2) of section 62... made in relation to a reference made under subsection (3) of that section; and
(b) in the case of an ... order which relates to a reference made under subsection (3) of that section... made in relation to a reference made under subsection (2) of that section;
and the ... order concerned may be varied... or revoked accordingly.
(6) The Secretary of State may at any time vary a reference under section 62.
(7) The Secretary of State shall consult the CMA before varying any such reference.
(8) Subsection (7) shall not apply if the CMA has requested the variation concerned.
(9) No variation by the Secretary of State under this section shall be capable of altering the consideration or considerations specified in the reference or the period permitted by virtue of section 65 within which the report of the CMA under that section is to be prepared and given to the Secretary of State.
65 Investigations and reports on references under section 62
(1) The CMA shall prepare a report on a reference under section 62 and give it to the Secretary of State within the period permitted by virtue of this section.
(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 63;
(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.
(2A) Where the report relates to a reference under section 62 which has been made after a report of OFCOM under section 61A, the CMA shall give a copy of its report (whether or not published) to OFCOM.
(3) Sections 51 and 52 (but not section 53) shall apply for the purposes of a report under this section as they apply for the purposes of a report under section 50.
(4) The CMA shall carry out such investigations as it considers appropriate for the purpose of producing a report under this section.
66 Decision and enforcement action by Secretary of State
(1) Subsection (2) applies where the Secretary of State has received a report of the CMA under section 65 in relation to a special merger situation.
(2) The Secretary of State shall, in connection with a reference under section 62(2) or (3), decide the questions which the CMA is required to decide by virtue of section 63(1) to (3).
(3) The Secretary of State shall make and publish his decision under subsection (2) within the period of 30 days beginning with the receipt of the report of the CMA under section 65; and subsection (8) of section 54 shall apply for the purposes of this subsection as it applies for the purposes of subsection (5) of that section.
(4) In making his decisions under subsection (2), the Secretary of State shall accept the decisions of the report of the CMA under section 65 as to whether a special merger situation has been created or whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a special merger situation.
(5) Subsection (6) applies where the Secretary of State has decided under subsection (2) that—
(a) a special merger situation has been created or arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a special merger situation;
(b) at least one consideration which is mentioned in the special intervention notice concerned is relevant to a consideration of the special merger situation concerned; and
(c) taking account only of the relevant consideration or considerations concerned, the creation of that situation operates or may be expected to operate against the public interest;
and has so decided, and published his decision, within the period required by subsection (3).
(6) The Secretary of State may take such action under paragraph 9 or 11 of Schedule 7 as he 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 creation of the special merger situation concerned.
(7) In making a decision under subsection (6), the Secretary of State shall, in particular, have regard to the report of the CMA under section 65.
68A Relevant merger situations involving energy network mergers
(1) For the purposes of this Part, a relevant merger situation involves an energy network merger if two or more of the enterprises that cease to be distinct are energy network enterprises of the same type.
(2) For the purposes of this Part, the types of “energy network enterprise” are—
(a) an enterprise holding a licence under section 7 of the Gas Act 1986 (gas transporter);
(b) an enterprise holding a licence under section 6(1)(b) of the Electricity Act 1989 (transmission of electricity), except as mentioned in subsection (3);
(c) an enterprise holding a licence under section 6(1)(c) of the Electricity Act 1989 (distribution of electricity), except as mentioned in subsection (3).
(3) An enterprise holding a licence under section 6(1)(b) or (c) of the Electricity Act 1989 is not an energy network enterprise if—
(a) the licence was granted following a tender exercise, and
(b) either—
(i) the enterprise does not hold any other licence of a type mentioned in subsection (2), or
(ii) the enterprise holds one or more other licences under section 6(1)(b) or (c) of the Electricity Act 1989 and each of those other licences was granted following a tender exercise.
(4) The Secretary of State may by regulations amend this section by—
(a) adding to subsection (2) an enterprise holding a licence under the Gas Act 1986 or the Electricity Act 1989 of a type that is not specified in that subsection;
(b) creating an exception in relation to a type of enterprise specified in subsection (2);
(c) amending or removing an exception that applies in relation to a type of enterprise specified in subsection (2).
(5) Before making regulations under subsection (4), the Secretary of State must consult—
(a) the Gas and Electricity Markets Authority, and
(b) the CMA.
(6) In this section, “tender exercise” has the same meaning as in section 6CD of the Electricity Act 1989.
68B Further duty to make references in relation to completed mergers
(1) The CMA must make a reference to its chair for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 if the CMA believes that it is or may be the case that—
(a) a relevant merger situation involving an energy network merger has been created, and
(b) the creation of that situation has caused, or may be expected to cause, substantial prejudice to the ability of the Gas and Electricity Markets Authority, in carrying out its functions under Part 1 of the Gas Act 1986 or Part 1 of the Electricity Act 1989, to make comparisons between energy network enterprises of the type involved in the energy network merger;
but this is subject to subsections (2) and (3).
(2) The CMA may decide not to make a reference under this section if it believes that any relevant customer benefits in relation to the creation of the relevant merger situation outweigh the prejudice mentioned in subsection (1)(b).
(3) The CMA may not make a reference under this section—
(a) in any circumstances mentioned in section 22(3)(za) to (b) or (d), or
(b) if the relevant merger situation concerned is being, or has been, dealt with in connection with a reference made under section 68C.
(4) A reference under this section must, in particular, specify—
(a) the enactment under which it is made, and
(b) the date on which it is made.
68C Further duty to make references in relation to anticipated mergers
(1) The CMA must make a reference to its chair for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 if the CMA believes that it is or may be the case that—
(a) arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation involving an energy network merger, and
(b) the creation of that situation may be expected to cause substantial prejudice to the ability of the Gas and Electricity Markets Authority, in carrying out its functions under Part 1 of the Gas Act 1986 or Part 1 of the Electricity Act 1989, to make comparisons between energy network enterprises of the type involved in the energy network merger,
but this is subject to subsections (2) and (3).
(2) The CMA may decide not to make a reference under this section if it believes that—
(a) the arrangements concerned are not sufficiently far advanced, or are not sufficiently likely to proceed, to justify the making of a reference, or
(b) any relevant customer benefits in relation to the creation of the relevant merger situation concerned outweigh the prejudice mentioned in subsection (1)(b).
(3) The CMA may not make a reference under this section—
(a) in any circumstances mentioned in section 33(3)(za) to (b) or (d), or
(b) if the arrangements concerned are being, or have been, dealt with in connection with a reference under section 68B.
(4) A reference under this section must, in particular, specify—
(a) the enactment under which it is made, and
(b) the date on which it is made.
68D Opinion of the Gas and Electricity Markets Authority
(1) Before forming a view for the purposes of section 68B(1)(b) or (2) or 68C(1)(b) or (2)(b), the CMA must—
(a) ask the Gas and Electricity Markets Authority to give an opinion, and
(b) consider that opinion.
(2) Where the CMA makes a request under this section, the Gas and Electricity Markets Authority must give its opinion on—
(a) whether and to what extent the creation of the relevant merger situation has prejudiced, or may be expected to prejudice, the Authority’s ability, in carrying out its functions under Part 1 of the Gas Act 1986 or Part 1 of the Electricity Act 1989, to make comparisons between energy network enterprises of the type involved in the relevant merger situation, and
(b) whether any prejudice is outweighed by any relevant customer benefits in relation to the creation of the relevant merger situation.
(3) The Gas and Electricity Markets Authority must prepare and publish a statement of the methods it considers should be applied in forming an opinion on the matters mentioned in subsection (2).
(4) The statement must, in particular, set out—
(a) the criteria to be used for assessing the effect of any particular energy network enterprises ceasing to be distinct enterprises on the Gas and Electricity Market Authority’s ability to make comparisons between such enterprises, and
(b) the relative weight to be given to the criteria.
(5) Before preparing or altering the statement, the Gas and Electricity Markets Authority must consult—
(a) the Secretary of State,
(b) the Scottish Ministers,
(c) the Welsh Ministers,
(d) the CMA, and
(e) each energy network enterprise.
(6) The Gas and Electricity Markets Authority must from time to time—
(a) review the statement, and
(b) where appropriate, change the statement and publish the new version.
(7) In forming its opinion under this section, the Gas and Electricity Markets Authority must apply the methods set out in its latest statement.
(1) In respect of a relevant merger situation involving an energy network merger, the CMA may—
(a) make a reference under both section 22 and section 68B, or
(b) make a reference under both section 33 and section 68C.
(2) If the CMA does so—
(a) the references may be decided by the same group constituted under Schedule 4 to the Enterprise and Regulatory Reform Act 2013;
(b) the functions of the CMA referred to in section 34C(1) and (2) may be carried out on behalf of the CMA by the same group in relation to both references; and
(c) the group’s duties under section 38 to prepare and publish a report on each reference may be satisfied by preparing and publishing a single report on both references.
(1) In relation to—
(a) a reference, or possible reference, under section 68B, and
(b) a reference, or possible reference, under section 68C,
Chapter 1 of this Part applies with the modifications set out in Schedule 5A.
(2) In Chapters 2 to 5 of this Part, references to a provision of Chapter 1 include that provision as applied by subsection (1) and Schedule 5A.
(1) For sections 32 to 35 of the Water Industry Act 1991 (c. 56) (special provision for water merger references) there shall be substituted—
Duty to refer merger of water or sewerage undertaking
32 Subject to section 33 below, it shall be the duty of the OFT to make a merger reference to the Competition Commission if the OFT believes that it is or may be the case—
(a) that arrangements are in progress which, if carried into effect, will result in a merger of any two or more water enterprises; or
(b) 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) above.
Exclusion of small mergers from duty to make reference
33 (1) The OFT shall not make a merger reference under section 32 above in respect of any actual or prospective merger of two or more water enterprises if it appears to the OFT—
(a) that the value of the turnover of the water enterprise being taken over does not exceed or, as the case may be, would not exceed £10 million; or
(b) that the only water enterprises already belonging to the person making the take over are enterprises each of which has a turnover the value of which does not exceed or, as the case may be, would not exceed £10 million.
(2) For the purposes of subsection (1)(a) above, the value of the turnover of the water enterprise being taken over shall be determined by taking the total value of the turnover of the water enterprises ceasing to be distinct enterprises and deducting—
(a) the turnover of any water enterprise continuing to be carried on under the same ownership and control; or
(b) if there is no water enterprise continuing to be carried on under the same ownership and control, the turnover which, of all the turnovers concerned, is the turnover of the highest value.
(3) For the purposes of subsection (1)(b) above—
(a) every water enterprise ceasing to be a distinct enterprise and whose turnover is to be deducted by virtue of subsection (2)(a) or (b) above shall be treated as a water enterprise belonging to the person making the take over; and
(b) water enterprises shall be treated as separate enterprises so far as they are carried on by different companies holding appointments under Chapter 1 of this Part.
(4) For the purposes of this section the turnover of a water enterprise shall be determined in accordance with such provisions as may be specified in regulations made by the Secretary of State.
(5) Regulations under subsection (4) above 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; and
(b) the date or dates by reference to which an enterprise’s turnover is to be determined.
(6) Regulations under subsection (4) above may, in particular, make provision enabling the Secretary of State or the OFT to determine matters of a description specified in the regulations (including any of the matters mentioned in paragraphs (a) and (b) of subsection (5) above).
(7) The Secretary of State may by regulations amend subsection (1) above so as—
(a) to alter the sum for the time being mentioned in paragraph (a) of that subsection or otherwise to modify the condition set out in that paragraph; or
(b) to alter the sum for the time being mentioned in paragraph (b) of that subsection or otherwise to modify the condition set out in that paragraph.
(8) Regulations under subsection (7) above—
(a) shall not make any modifications in relation to mergers on or before the coming into force of the regulations; and
(b) may, in particular, include supplemental, consequential or transitional provision amending or repealing any provision of this section.
(9) References in this section to enterprises being carried on under the same ownership and control shall be construed in accordance with Part 3 of the 2002 Act.
Application of provisions of Enterprise Act 2002
34 The provisions of Schedule 4ZA to this Act shall have effect with respect to mergers of water enterprises.
Construction of merger provisions
35 (1) In this Chapter (including Schedule 4ZA)—
“enterprise” has the same meaning as in Part 3 of the 2002 Act; and
“water enterprise” means an enterprise carried on by a water undertaker.
(2) References in this Chapter (including Schedule 4ZA), in relation to any two or more enterprises, to the merger of those enterprises are references to those enterprises ceasing, within the meaning of Part 3 of the 2002 Act, to be distinct enterprises; and sections 27 and 29 of that Act and any provision made under section 34 of that Act (time at which enterprises cease to be distinct) shall have effect for the purposes of this Chapter (including Schedule 4ZA) as they have effect for the purposes of that Part.
(3) Nothing in sections 32 to 34 above (including Schedule 4ZA) shall prejudice any power of the OFT or the Secretary of State, in a case in which, or to any extent to which, the OFT is not required to make a reference under section 32 above, to make a reference under Part 3 of the 2002 Act in respect of any actual or prospective merger of two or more water enterprises.
(4) Where two or more enterprises have merged or will merge as part of transactions or arrangements which also involve an actual or prospective merger of two or more water enterprises, Part 3 of the 2002 Act shall apply in relation to the actual or prospective merger of the enterprises concerned excluding the water enterprises; and references in that Part to the creation of a relevant merger situation shall be construed accordingly.
(5) Subject to subsections (3) and (4), Part 3 of the 2002 Act shall not apply in a case in which the OFT is required to make a reference under section 32 above except as applied by virtue of Schedule 4ZA.
(2) Before Schedule 4A to the Act of 1991 there shall be inserted, as Schedule 4ZA, the Schedule set out in Schedule 6 to this Act.
(1) The Secretary of State must give the CMA a notice (a “foreign state intervention notice”) if the Secretary of State has reasonable grounds for suspecting that it is or may be the case that—
(a) a foreign state newspaper merger situation has been created, or
(b) arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a foreign state newspaper merger situation.
(2) A foreign state intervention notice must describe the foreign state newspaper merger situation to which it relates.
(3) For the purposes of this Chapter a foreign state newspaper merger situation has been created where—
(a) as a result of two or more enterprises ceasing to be distinct, a relevant merger situation would have been created by virtue of section 23(1) if the modifications in Schedule 6A had effect,
(b) one of the enterprises concerned is a newspaper enterprise, and
(c) as a result of the enterprises ceasing to be distinct, a foreign power is able to control or influence the policy of the person carrying on the newspaper enterprise, or is able to control or influence that policy to a greater extent.
(4) Schedule 6B makes provision about the circumstances in which a foreign power is able to control or influence the policy of a person for the purposes of this section (and references to a foreign power being able to control or influence the policy of a person to a greater extent are to be interpreted accordingly).
(5) A foreign state intervention notice—
(a) comes into force when it is given, and
(b) ceases to be in force when the matter to which it relates is finally determined under this Chapter (see section 70F).
(1) Where the Secretary of State gives the CMA a foreign state intervention notice, the CMA must, within such period as the Secretary of State may require, give the Secretary of State a report in relation to the case.
(2) The report must include—
(a) a summary of representations relevant to the case that have been received by the CMA, and
(b) a decision as to whether the CMA believes that—
(i) a foreign state newspaper merger situation has been created, or
(ii) arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a foreign state newspaper merger situation.
(3) The CMA must carry out such investigations as it considers appropriate for the purposes of producing a report under this section.
(4) For the purposes of its investigation the CMA must invite representations from the enterprises concerned in the case.
70C Intervention to prevent foreign control of a newspaper enterprise
(1) Subsection (2) applies where the Secretary of State has received a report under section 70B stating that the CMA believes that—
(a) a foreign state newspaper merger situation has been created, or
(b) arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a foreign state newspaper merger situation.
(2) The Secretary of State must make an order containing such provision as the Secretary of State considers reasonable and practicable for the purposes of reversing or preventing the creation of the foreign state newspaper merger situation identified in the report.
(3) An order under subsection (2) may contain—
(a) anything permitted by Schedule 8 (provision that may be contained in certain enforcement orders), and
(b) such supplementary, consequential or incidental provision as the Secretary of State considers appropriate.
(4) An order under subsection (2)—
(a) comes into force at such time as is determined by or under the order, and
(b) may be varied or revoked by another order.
(5) Paragraph 2 of Schedule 7 (enforcement regime for public interest and special public interest cases: order for the purposes of preventing pre-emptive action)—
(a) applies in relation to a foreign state intervention notice as it applies in relation to an intervention notice, and
(b) for this purpose, is to be read as if—
(i) sub-paragraph (10) were omitted;
(ii) for sub-paragraph (12), there were substituted—
(12) In this paragraph “pre-emptive action” means action which might prejudice a foreign state intervention notice or a report under section 70B, or might impede the taking of any action under this Part in relation to such a notice or report
.
(1) Nothing in this Chapter limits the exercise of powers in relation to a foreign state newspaper merger situation under other provisions of this Part.
(2) The powers in this Chapter may be exercised in relation to a foreign state newspaper merger situation regardless of whether any other power under this Part has been exercised in relation to the case.
(3) The CMA must, in considering whether to make a reference under section 22 or 33, bring to the attention of the Secretary of State any case which it believes may be relevant to the duty in section 70A(1).
(1) In this Chapter, “foreign power” means—
(a) the sovereign or other head of a foreign state in their public or private capacity,
(b) a foreign government or part of a foreign government,
(c) the head or senior members of a foreign government in their private capacity,
(d) an agency or authority of a foreign government, or of part of a foreign government,
(e) the head or senior members of an agency or authority of a foreign government, or of part of a foreign government, in their private capacity,
(f) an authority responsible for administering the affairs of an area within a foreign country or territory, or persons exercising the functions of such an authority,
(g) a political party which is a governing political party of a foreign government, or
(h) the officers of a political party, which is a governing political party of a foreign government, in their private capacity.
(2) A political party is a governing political party of a foreign government if persons holding political or official posts in the foreign government or part of the foreign government—
(a) hold those posts as a result of, or in the course of, their membership of the party, or
(b) in exercising the functions of those posts, are subject to the direction or control of, or significantly influenced by, the party.
(3) In this section—
“foreign country or territory” means a country or territory outside the United Kingdom, the Channel Islands, the Isle of Man or the British Overseas Territories;
“foreign government” means the government of a foreign country or territory;
a “government” includes persons exercising the functions of a government;
“territory” includes the constituent territories of a federal state.
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) For the purposes of this Chapter, a matter is finally determined when the Secretary of State—
(a) makes an order under section 70C(2), or
(b) publishes under section 107 a report of the CMA under section 70B which the Secretary of State has received and which states that the CMA has decided that the CMA believes that—
(i) no foreign state newspaper merger situation has been created, or
(ii) no arrangements are in progress or in contemplation which, if carried into effect would result in the creation of a foreign state newspaper merger situation.
(1) The Secretary of State may by regulations change the meaning of—
(a) “foreign power”, or
(b) “newspaper”,
for the purposes of this Chapter.
(2) Regulations under subsection (1)(a) may, among other things—
(a) provide for a description of person to be treated as if they were not a foreign power, and
(b) frame any such description by reference to—
(i) the independence of persons from other descriptions of foreign power, or
(ii) the interest which persons have in a newspaper enterprise.
(3) The Secretary of State may by regulations apply any provision made by or under Chapter 1, with or without modifications, for the purposes of this Chapter (including by way of amendments to the modifications in Schedule 6A).
(4) Regulations under this section may, among other things, make provision having effect on or after 13 March 2024.
72 Initial enforcement orders: completed or anticipated mergers
(1) Subsection (2) applies where—
(a) the CMA is considering whether to make a reference under section 22, 33, 68B or 68C; and
(b) the CMA has reasonable grounds for suspecting that it is or may be the case that two or more enterprises have ceased to be distinct or that arrangements are in progress or in contemplation which, if carried into effect, will result in two or more enterprises ceasing to be distinct.
(2) The CMA may by order, for the purpose of preventing pre-emptive action—
(a) prohibit or restrict the doing of things which the CMA 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.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3A) Subsection (3B) applies where—
(a) subsection (1)(a) and (b) applies; and
(b) the CMA also has reasonable grounds for suspecting that pre-emptive action has or may have been taken.
(3B) The CMA 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.
(3C) A person may, with the consent of the CMA, take action or action of a particular description where the action would otherwise constitute a contravention of an order under this section.
(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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) So far as made in relation to a reference under section 22, 33, 68B or 68C, an order under this section which has not previously ceased to be in force and which has not been adopted under paragraph 2 of Schedule 7 ceases to be in force in relation to the reference concerned—
(a) where the CMA has decided to make the reference concerned ... —
(i) if the CMA accepts an undertaking under section 80 or makes an order under section 81, on the acceptance of the undertaking or the making of the order, and
(ii) otherwise on the final determination of the reference concerned;
(b) where the CMA has decided to accept an undertaking under section 73 instead of making that reference, on the acceptance of that undertaking;
(c) where an intervention notice is in force, at the end of the period of 7 days beginning with the giving of that notice; and
(d) where the CMA has otherwise decided not to make the reference concerned under section 22, 33, 68B or 68C, on the making of that decision.
(7) The CMA shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or revoking an order under this section.
(8) In this section “pre-emptive action” means action which might prejudice the reference concerned or impede the taking of any action under this Part which may be justified by the CMA's decisions on the reference.
73 Undertakings in lieu of references under section 22(1), 33(1), 68B or 68C
(1) Subsection (2) applies if the CMA considers that it is under a duty to make a reference under section 22(1) or 33(1) (disregarding the operation of section 22(3)(b) or (as the case may be) 33(3)(b) but taking account of the power of the CMA under section 22(2) or (as the case may be) 33(2) to decide not to make such a reference).
(2) The CMA may, instead of making such a reference and for the purpose of remedying, mitigating or preventing the substantial lessening of competition concerned or any adverse effect which has or may have resulted from it or may be expected to result from it, accept from such of the parties concerned as it considers appropriate undertakings to take such action as it considers appropriate.
(3) In proceeding 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 substantial lessening of competition and any adverse effects resulting from it.
(3A) Subsection (3B) applies if the CMA considers that it is under a duty to make a reference under section 68B or 68C; and for the purposes of this subsection it must—
(a) disregard the operation of section 22(3)(b) or 33(3)(b) (as applied by section 68B or 68C), but
(b) take account of its power under section 68B(2) or 68C(2) to decide not to make such a reference.
(3B) The CMA may, instead of making such a reference and for the purpose of remedying, mitigating or preventing—
(a) the prejudice to the ability of the Gas and Electricity Markets Authority described in section 68B(1) or 68C(1), or
(b) any adverse effect which has or may have resulted from it or may be expected to result from it,
accept from such of the parties concerned as it considers appropriate undertakings to take such action as it considers appropriate.
(3C) In proceeding under subsection (3B), the CMA must, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to the prejudice and any adverse effects resulting from it.
(3D) Before proceeding under subsection (3B), the CMA must—
(a) ask the Gas and Electricity Markets Authority to give its opinion on the effect of the undertakings offered, and
(b) consider the Authority’s opinion.
(4) In proceeding under subsection (2) or (3B), the CMA may, in particular, have regard to the effect of any action on any relevant customer benefits in relation to the creation of the relevant merger situation concerned.
(5) 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 CMA.
(6) An undertaking under this section which is in force in relation to a relevant merger situation shall cease to be in force if an order comes into force under section 75 or 76 in relation to that undertaking.
(7) The CMA shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or releasing an undertaking under this section.
(1) A party concerned who wishes to offer an undertaking to the CMA for the purposes of section 73(2) or (3B) must do so before the end of the period of 5 working days beginning with—
(a) the day after the CMA gives the person the notice required by section 34ZA(1)(b); ...
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) If an undertaking is offered for the purposes of section 73(2) or (3B), the CMA shall, before the end of the period of 10 working days beginning with the day mentioned in subsection (1)—
(a) decide whether there are reasonable grounds for believing that the undertaking or a modified version of it might be accepted by the CMA under section 73(2) or (3B), and
(b) if it considers that it might be, give notice to the person who offered the undertaking that it is considering it.
(3) If such a notice is given, the CMA shall decide whether to accept the undertaking before the end of the period of 50 working days beginning with the day mentioned in subsection (1).
(4) The CMA may extend the period mentioned in subsection (3), by no more than 40 working days, if it considers that there are special reasons for doing so.
(5) The CMA shall prepare and publish guidance in relation to the exercise of its power under subsection (4).
(6) The CMA may revise any such guidance and, where it does so, shall publish the revised statement.
(7) The CMA may extend the period mentioned in subsection (3) if it considers that a relevant person has failed (with or without reasonable excuse) to comply with any requirement of a notice given under section 109 in relation to the case in question.
(8) In subsection (7), “relevant person” means—
(a) any person carrying on any of the enterprises concerned;
(b) any person who (whether alone or as a member of a group) owns or has control of any such person; or
(c) any officer, employee or agent of any person mentioned in paragraph (a) or (b).
(9) For the purposes of subsection (8), a person or group of persons able, directly or indirectly, to control or materially influence the policy of a body of persons corporate or unincorporate, but without having a controlling interest in that body of persons, may be treated as having control of it.
(10) An extension under subsection (4) or (7) comes into force when published under section 107.
(11) An extension under subsection (7) 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.
(12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) A period extended under section 73A(4) may also be extended under section 73A(7), and a period extended under section 73A(7) may also be extended under section 73A(4).
(2) No more than one extension is possible under section 73A(4).
(3) Where a period is extended or further extended under section 73A(4) or (7), the period as extended or (as the case may be) further extended is, subject to subsections (4) and (5), to 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 must discharge its duty under section 73A(3) is further extended,
(b) the further extension and at least one previous extension is made under section 73A(7), and
(c) the same days or fractions of days are included in or comprise the further extension and are included in or comprise at least one such previous extension.
(5) In calculating the period of the further extension, any days or fractions of days of the kind mentioned in subsection (4)(c) are to be disregarded.
(6) The Secretary of State may by order amend section 73A so as to alter one or more of the periods for the time being mentioned in the section.
(7) But no alteration may be made by virtue of subsection (6) which results in—
(a) the period mentioned in section 73A(1) exceeding 5 working days;
(b) the period mentioned in section 73A(2) exceeding 10 working days;
(c) the period mentioned in section 73A(3) exceeding 50 working days;
(d) the period mentioned in section 73A(4) exceeding 40 working days.
(8) Before making an order under subsection (6) the Secretary of State shall consult the CMA and such other persons as the Secretary of State considers appropriate.
(1) The relevant authority shall not make a reference under section 22, 33 or 45 in relation to the creation of a relevant merger situation if—
(a) the CMA has accepted an undertaking or group of undertakings under section 73(2); and
(b) the relevant merger situation is the situation by reference to which the undertaking or group of undertakings was accepted.
(1A) The relevant authority may not make a reference under section 45, 68B or 68C in relation to the creation of a relevant merger situation if—
(a) the CMA has accepted an undertaking or group of undertakings under section 73(3B), and
(b) the relevant merger situation is the situation by reference to which the undertaking or group of undertakings was accepted.
(2) Subsections (1) and (1A) do not prevent the making of a reference if material facts about relevant arrangements or transactions, or relevant proposed arrangements or transactions, were not notified (whether in writing or otherwise) to the CMA or made public before any undertaking concerned was accepted.
(3) For the purposes of subsection (2) arrangements or transactions, or proposed arrangements or transactions, are relevant if they are the ones in consequence of which the enterprises concerned ceased or may have ceased, or may cease, to be distinct enterprises.
(4) In subsection (2) “made public” means so publicised as to be generally known or readily ascertainable.
(5) In this section “relevant authority” means—
(a) in relation to a possible reference under section 22 , 33, 68B or 68C, the CMA; and
(b) in relation to a possible reference under section 45, the Secretary of State.
75 Order-making power where undertakings under section 73 not fulfilled etc.
(1) Subsection (2) applies where the CMA considers that—
(a) an undertaking accepted by it under section 73(2) or (3B) has not been, is not being or will not be fulfilled; or
(b) in relation to an undertaking accepted by it under that section, information which was false or misleading in a material respect was given to the CMA by the person giving the undertaking before the CMA decided to accept the undertaking.
(2) The CMA may, for any of the purposes mentioned in section 73(2) or (3B) (as the case may be), make an order under this section.
(3A) In proceeding under subsection (2) for the purposes mentioned in section 73(2) or (3B), the CMA must, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to—
(a) in relation to the purpose mentioned in section 73(2), the substantial lessening of competition mentioned in that subsection and any adverse effects resulting from it;.
(b) in relation to the purpose mentioned in section 73(3B), the prejudice mentioned in that subsection and any adverse effects resulting from it.
(3B) In proceeding under subsection (2) for the purposes mentioned in section 73(2) or (3B), the CMA may, in particular, have regard to the effect of any action on any relevant customer benefits in relation to the creation of the relevant merger situation concerned.
(4) An order under this section may contain—
(a) anything permitted by Schedule 8; and
(b) such supplementary, consequential or incidental provision as the CMA 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 CMA shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or revoking an order under this section.
(1) Subsection (2) applies where—
(a) the CMA has the power to make an order under section 75 in relation to a particular undertaking and intends to make such an order; or
(b) the CMA has the power to make an order under section 83 in relation to a particular undertaking and intends to make such an order.
(2) The CMA may, for the purpose of preventing any action which might prejudice the making of that order, make an order under this section.
(3) No order shall be made under subsection (2) unless the CMA has reasonable grounds for suspecting that it is or may be the case that action which might prejudice the making of the order under section 75 or (as the case may be) 83 is in progress or in contemplation.
(4) An order under subsection (2) may—
(a) prohibit or restrict the doing of things which the CMA considers would prejudice the making of the order under section 75 or (as the case may be) 83;
(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.
(5) 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.
(6) An order under this section shall, if it has not previously ceased to be in force, cease to be in force on—
(a) the coming into force of an order under section 75 or (as the case may be) 83 in relation to the undertaking concerned; or
(b) the making of the decision not to proceed with such an order.
(7) The CMA shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or revoking an order under this section.
77 Restrictions on certain dealings: completed mergers
(1) Subsections (2) and (3) apply where—
(a) a reference has been made under section 22 or 68B but not finally determined; and
(b) no undertakings under section ... 80 are in force in relation to the relevant merger situation concerned and no orders under section 72 or 81 are in force in relation to that situation.
(2) No relevant person shall, without the consent of the CMA —
(a) complete any outstanding matters in connection with any arrangements which have resulted in the enterprises concerned ceasing to be distinct enterprises;
(b) make any further arrangements in consequence of that result (other than arrangements which reverse that result); or
(c) transfer the ownership or control of any enterprises to which the reference relates.
(3) No relevant person shall, without the consent of the CMA, assist in any of the activities mentioned in paragraphs (a) to (c) of subsection (2).
(4) The prohibitions in subsections (2) and (3) do not apply in relation to anything which the person concerned is required to do by virtue of any enactment.
(5) The consent of the CMA under subsection (2) or (3)—
(a) may be general or special;
(b) may be revoked by the CMA; and
(c) shall be published in such manner as the CMA considers appropriate for the purpose of bringing it to the attention of any person entitled to the benefit of it.
(6) Paragraph (c) of subsection (5) shall not apply if the CMA considers that publication is not necessary for the purpose mentioned in that paragraph.
(7) Subsections (2) and (3) shall apply to a person’s conduct outside the United Kingdom if (and only if) he is—
(a) a United Kingdom national;
(b) a body incorporated under the law of the United Kingdom or of any part of the United Kingdom; or
(c) a person carrying on business in the United Kingdom.
(8) In this section “relevant person” means—
(a) any person who carries on any enterprise to which the reference relates or who has control of any such enterprise;
(b) any subsidiary of any person falling within paragraph (a); or
(c) any person associated with any person falling within paragraph (a) or any subsidiary of any person so associated.
78 Restrictions on certain share dealings: anticipated mergers
(1) Subsection (2) applies where—
(a) a reference has been made under section 33 or 68C; and
(b) no undertakings under section 80 are in force in relation to the relevant merger situation concerned and no orders under section 72 or 81 are in force in relation to that situation.
(2) No relevant person shall, without the consent of the CMA, directly or indirectly acquire during the relevant period an interest in shares in a company if any enterprise to which the reference relates is carried on by or under the control of that company.
(3) The consent of the CMA under subsection (2)—
(a) may be general or special;
(b) may be revoked by the CMA; and
(c) shall be published in such manner as the CMA considers appropriate for bringing it to the attention of any person entitled to the benefit of it.
(4) Paragraph (c) of subsection (3) shall not apply if the CMA considers that publication is not necessary for the purpose mentioned in that paragraph.
(5) Subsection (2) shall apply to a person’s conduct outside the United Kingdom if (and only if) he is—
(a) a United Kingdom national;
(b) a body incorporated under the law of the United Kingdom or of any part of the United Kingdom; or
(c) a person carrying on business in the United Kingdom.
(6) In this section and section 79—
“company” includes any body corporate;
“relevant period” means the period beginning with the making of the reference concerned and ending when the reference is finally determined;
“relevant person” means—
any person who carries on any enterprise to which the reference relates or who has control of any such enterprise;
any subsidiary of any person falling within paragraph (a); or
any person associated with any person falling within paragraph (a) or any subsidiary of any person so associated; and
“share” means share in the capital of a company, and includes stock.
79 Sections 77 and 78: further interpretation provisions
(1) For the purposes of this Part a reference under section 22 , 33, 68B or 68C is finally determined if—
(a) the reference is cancelled under section 37(1);
(b) the time within which the CMA is to prepare and publish a report under section 38 in relation to the reference has expired and no such report has been prepared and published;
(c) the report of the CMA under that section contains the decision that—
(i) in relation to a reference under section 22 or 33, there is not an anti-competitive outcome, or
(ii) in relation to a reference under section 68B or 68C, there is not a prejudicial outcome;
(d) the report of the CMA under that section contains the decision that—
(i) in relation to a reference under section 22 or 33, there is an anti-competitive outcome, or
(ii) in relation to a reference under section 68B or 68C, there is a prejudicial outcome, and
the CMA has decided under section 41(2) neither to accept an undertaking under section 82 nor to make an order under section 84;
(e) the report of the CMA under that section contains the decision that—
(i) in relation to a reference under section 22 or 33, there is an anti-competitive outcome, or
(ii) in relation to a reference under section 68B or 68C, there is a prejudicial outcome, and
the CMA has decided under section 41(2) to accept an undertaking under section 82 or to make an order under section 84.
(2) For the purposes of this Part the time when a reference under section 22 , 33, 68B or 68C is finally determined is—
(a) in a case falling within subsection (1)(a), the making of the decision concerned;
(b) in a case falling within subsection (1)(b), the expiry of the time concerned;
(c) in a case falling within subsection (1)(c), the publication of the report;
(d) in a case falling within subsection (1)(d), the making of the decision under section 41(2); and
(e) in a case falling within subsection (1)(e), the acceptance of the undertaking concerned or (as the case may be) the making of the order concerned.
(3) For the purposes of section 78 and subject to subsection (4) below, the circumstances in which a person acquires an interest in shares include those where—
(a) he enters into a contract to acquire the shares (whether or not for cash);
(b) he is not the registered holder but acquires the right to exercise, or to control the exercise of, any right conferred by the holding of the shares; or
(c) he—
(i) acquires a right to call for delivery of the shares to himself or to his order or to acquire an interest in the shares; or
(ii) assumes an obligation to acquire such an interest.
(4) The circumstances in which a person acquires an interest in shares for the purposes of section 78 do not include those where he acquires an interest in pursuance of an obligation assumed before the publication by the CMA of the reference concerned.
(5) The circumstances in which a person acquires a right mentioned in subsection (3)—
(a) include those where he acquires a right, or assumes an obligation, whose exercise or fulfilment would give him that right; but
(b) do not include those where he is appointed as proxy to vote at a specified meeting of a company or of any class of its members or at any adjournment of the meeting or he is appointed by a corporation to act as its representative at any meeting of the company or of any class of its members.
(5A) References in subsection (1) to a prejudicial outcome are to a prejudicial outcome within the meaning of section 35 or 36 as those sections have effect by virtue of paragraphs 6 and 7 of Schedule 5A.
(6) References to rights and obligations in subsections (3) to (5) include conditional rights and conditional obligations.
(7) References in sections 77 and 78 to a person carrying on or having control of any enterprise includes a group of persons carrying on or having control of an enterprise and any member of such a group.
(8) Sections 26(2) to (4) and 127(1), (2) and (4) to (6) shall apply for the purposes of sections 77 and 78 to determine whether any person or group of persons has control of any enterprise and whether persons are associated as they apply for the purposes of section 26 to determine whether enterprises are brought under common control.
(9) Section 1159 of, and Schedule 6 to, the Companies Act 2006 shall apply for the purposes of sections 77 and 78 to determine whether a company is a subsidiary of an individual or of a group of persons as they apply to determine whether it is a subsidiary of a company; and references to a subsidiary in paragraph 8 of Schedule 6 as so applied shall be construed accordingly.
(1) Subsections (2) and (2A) apply where a reference under section 22 , 33, 68B or 68C has been made but is not finally determined.
(2) The CMA may, for the purpose of preventing pre-emptive action, accept from such of the parties concerned as it considers appropriate undertakings to take such action as it considers appropriate.
(2A) Where the CMA has reasonable grounds for suspecting that pre-emptive action has or may have been taken, it may, for the purpose of restoring the position to what it would have been had the action not been taken or otherwise for the purpose of mitigating its effects, accept from such of the parties concerned as it considers appropriate undertakings to take such action as it considers appropriate.
(2B) A person may, with the consent of the CMA, take action or action of a particular description where the action would otherwise constitute a contravention of an undertaking under this section.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) 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 CMA.
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7) An undertaking which is in force under this section in relation to a reference under section 22 , 33, 68B or 68C shall cease to be in force if an order under section 81 comes into force in relation to that reference.
(8) An undertaking under this section shall, if it has not previously ceased to be in force, cease to be in force when the reference under section 22 , 33, 68B or 68C is finally determined.
(9) The CMA shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or releasing an undertaking under this section.
(10) In this section and section 81 “pre-emptive action” means action which might prejudice the reference concerned or impede the taking of any action under this Part which may be justified by the CMA's decisions on the reference.
(1) Subsections (2) and (2A) apply where a reference has been made under section 22 , 33, 68B or 68C but is not finally determined.
(2) The CMA may by order, for the purpose of preventing pre-emptive action—
(a) prohibit or restrict the doing of things which the CMA 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) Where the CMA has reasonable grounds for suspecting that pre-emptive action has or may have been taken, it may by order, for the purpose of restoring the position to what it would have been had the 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.
(2B) A person may, with the consent of the CMA, take action or action of a particular description where the action would otherwise constitute a contravention of an order under this section.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) 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.
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7) An order which is in force under this section in relation to a reference under section 22 , 33, 68B or 68C shall cease to be in force if an undertaking under section 80 comes into force in relation to that reference.
(8) An order under this section shall, if it has not previously ceased to be in force, cease to be in force when the reference under section 22 , 33, 68B or 68C is finally determined.
(9) The CMA shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or revoking an order under this section.
(1) The CMA may, in accordance with section 41, accept, from such persons as it considers appropriate, undertakings to take action specified or described in the undertakings.
(2) 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 CMA.
(3) An undertaking which is in force under this section in relation to a reference under section 22 , 33, 68B or 68C shall cease to be in force if an order under section 76(1)(b) or 83 comes into force in relation to the subject-matter of the undertaking.
(4) No undertaking shall be accepted under this section in relation to a reference under section 22 , 33, 68B or 68C if an order has been made under—
(a) section 76(1)(b) or 83 in relation to the subject-matter of the undertaking; or
(b) section 84 in relation to that reference.
(5) The CMA shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or releasing an undertaking under this section.