Enterprise and Regulatory Reform Bill

Session 2012 - 13
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Other Bills before Parliament

Enterprise and Regulatory Reform Bill

Enterprise and Regulatory Reform Bill
Schedule 6 — Regulatory appeals etc: minor and consequential amendments
Part 2 — Amendments to other enactments
155

Water and Sewerage Services (Northern Ireland) Order 2006 (SI 2006/3336 N.I. 21))
181
The Water and Sewerage Services (Northern Ireland) Order 2006 is amended
as follows.
182
In article 2 (interpretation), in paragraph (2)—
(a)
after the definition of “the Authority”, insert—
5
““the CMA” means the Competition and Markets Authority;”, and
(b)
omit the definition of “the OFT”.
183   (1)
Article 19 (determinations under conditions of appointment) is amended as
follows.
      (2)
In paragraph (2)—
10
(a)
for “Competition Commission” substitute “CMA”, and
(b)
for “the Commission” substitute “the CMA”.
      (3)
In paragraph (3)—
(a)
for “Competition Commission” substitute “CMA”, and
(b)
for “that Commission” (in each place where it occurs) substitute “the
15
CMA”.
      (4)
In paragraph (4)—
(a)
for “Competition Commission” substitute “CMA”, and
(b)
for “the Commission” (in each place where it occurs) substitute “the
CMA”.
20
      (5)
In paragraph (5), for “Competition Commission” substitute “CMA”.
      (6)
In paragraph (6)—
(a)
for “Competition Commission” substitute “CMA”, and
(b)
for “the Commission” substitute “the CMA”.
      (7)
After paragraph (6) insert—
25
“(7)
The functions of the CMA with respect to a reference under this
Article are to be carried out on behalf of the CMA by a group
constituted for the purpose by the chair of the CMA under Schedule
4 to the Enterprise and Regulatory Reform Act 2012 (including
functions relating to the making of modifications following a report
30
on a reference, and functions under sections 109 to 115 of the
Enterprise Act, as applied by paragraph (5) read with Article 27).”
184   (1)
Article 21 (modification references) is amended as follows.
      (2)
In paragraph (1)—
(a)
for “Competition Commission” substitute “CMA”, and
35
(b)
for “the Commission” substitute “the CMA”.
      (3)
In paragraph (2)—
(a)
for “Competition Commission” substitute “CMA”, and
(b)
for “the Commission” substitute “the CMA”.
      (4)
In paragraph (3), for “Competition Commission” substitute “CMA”.
40
      (5)
In paragraph (5)—
(a)
for “Competition Commission” substitute “CMA”, and

Enterprise and Regulatory Reform Bill
Schedule 6 — Regulatory appeals etc: minor and consequential amendments
Part 2 — Amendments to other enactments
156

(b)
for “the Commission” (in each place where it occurs) substitute “the
CMA”.
      (6)
In paragraph (6), for “Competition Commission” substitute “CMA”.
      (7)
After paragraph (6) insert—
“(7)
The functions of the CMA with respect to a reference under this
5
Article are to be carried out on behalf of the CMA by a group
constituted for the purpose by the chair of the CMA under Schedule
4 to the Enterprise and Regulatory Reform Act 2012 (including
functions relating to the making of modifications following a report
on a reference, and functions under sections 109 to 115 of the
10
Enterprise Act 2002, as applied by Articles 23 and 27).”
      (8)
In the heading, for “Competition Commission” substitute “CMA”.
185
In article 22 (references under article 21: time limits), in paragraphs (2) and
(3), for “Competition Commission” (in each place where it occurs) substitute
“CMA”.
15
186   (1)
Article 24 (reports on modification references) is amended as follows.
      (2)
In paragraph (1), for “Competition Commission” substitute “CMA”.
      (3)
In paragraph (2)—
(a)
for “Competition Commission” substitute “CMA”, and
(b)
for the words from “in connection with” to the end, substitute “by the
20
chair of the CMA for the purpose of carrying out the functions of the
CMA with respect to the reference in question”.
      (4)
In paragraphs (3) to (5), for “Competition Commission” (in each place where
it occurs) substitute “CMA”.
      (5)
In paragraphs (6) and (7), for “Commission” (in each place where it occurs)
25
substitute “CMA”.
      (6)
In paragraph (9), for “Competition Commission” substitute “CMA”.
187
In article 25 (modifications following report), in paragraphs (1) and (5), for
“Competition Commission” substitute “CMA”.
188   (1)
Article 26 (power of veto following report) is amended as follows.
30
      (2)
In paragraph (1), for “Competition Commission” substitute “CMA”.
      (3)
In paragraphs (2) to (9), for “Commission” (in each place where it occurs)
substitute “CMA”.
      (4)
In the heading, for “Commission’s” substitute “CMA’s”.
189   (1)
Article 27 (power of veto following report: supplementary) is amended as
35
follows.
      (2)
In paragraph (2), for “Competition Commission” substitute “CMA”.
      (3)
In paragraphs (3), (4), (6) and (8), for “Commission” (in each place where it
occurs) substitute “CMA”.
      (4)
In the heading, for “Commission’s” substitute “CMA’s”.
40

Enterprise and Regulatory Reform Bill
Schedule 6 — Regulatory appeals etc: minor and consequential amendments
Part 2 — Amendments to other enactments
157

190
In article 28 (modification by order under other statutory provisions), in
paragraph (1)—
(a)
for “OFT, the Competition Commission” substitute “CMA”, and
(b)
for “OFT, the Commission” substitute “CMA”.
191
In article 57 (restrictions on disclosure of information), in sub-paragraph (7),
5
for “Competition Commission” substitute “CMA”.
Legal Services (Scotland) Act 2010 (asp 16)
192
The Legal Services (Scotland) Act 2010 is amended as follows.
193
In section 8 (pre-approval consideration), in subsection (1)(b), for “OFT”
substitute “CMA”.
10
194
In section 15 (initial considerations), in subsections (1) and (2), for “OFT” (in
each place where it occurs) substitute “CMA”.
195
In section 28 (communicating outside), in subsection (1)(e), for “OFT”
substitute “CMA”.
196
In section 49 (majority ownership), in subsection (5)(b)(iii), for “OFT”
15
substitute “CMA”.
197   (1)
Section 76 (input) is amended as follows.
      (2)
In subsections (1) to (3), for “OFT” (in each place where it occurs) substitute
“CMA”.
      (3)
In the heading, for “OFT” substitute “CMA”.
20
198
In section 92 (certification of bodies), in subsections (4) and (5), for “OFT” (in
each place where it occurs) substitute “CMA”.
199
In section 103 (certification of bodies), in subsections (4) and (5), for “OFT”
(in each place where it occurs) substitute “CMA”.
200   (1)
Section 113 (regard to input) is amended as follows.
25
      (2)
In subsections (1) to (3), for “OFT” (in each place where it occurs) substitute
“CMA”.
      (3)
In the heading, for “OFT” substitute “CMA”.
201
In section 122 (particular rules), in subsection (2), for “OFT” substitute
“CMA”.
30
202
In section 125 (citizens advice bodies), in subsection (4)(b), for “OFT”
substitute “CMA”.
203
In section 147 (further modification), in subsection (3)(d), for “OFT”
substitute “CMA”.
204   (1)
In section 149 (definitions), in subsection (1)—
35
(a)
after the definition of “the 2007 Act” insert—
““CMA” means Competition and Markets Authority,”,
and
(b)
omit the definition of “OFT”.

Enterprise and Regulatory Reform Bill
Schedule 7 — Mergers: interim measures
158

205
In schedule 2 (directions), in paragraph 4, in sub-paragraph (3), for “OFT” (in
each place where it occurs) substitute “CMA”.
206
In schedule 5 (amendment of authorisation), in paragraph 4, in sub-
paragraph (2)(b)(i), for “OFT” substitute “CMA”.
207
In schedule 6 (rescission of authorisation), in paragraph 4, in sub-paragraph
5
(2)(b)(i), for “OFT” substitute “CMA”.
208
In schedule 7 (surrender of authorisation), in paragraph 3, in sub-paragraph
(1)(a)(ii), for “OFT” substitute “CMA”.
209
In schedule 9 (index of expressions used), in the first table, in the column
headed “Whole Act expressions”—
10
(a)
after the reference to “advocate”, insert a reference to “CMA”;
(b)
omit the reference to “OFT”.
Schedule 7
Section 22(10)

Mergers: interim measures
Interim measures following references under section 22 or 33
15
1
Part 3 of the 2002 Act (mergers) is amended as follows.
2     (1)
Section 80 (interim undertakings) is amended as follows.
      (2)
In subsection (1), for “Subsections (2) and (3)” substitute “Subsections (2) and
(2A)”.
      (3)
After subsection (2) insert—
20
“(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
25
undertakings to take such action as it considers appropriate.”
      (4)
After subsection (2A) insert—
“(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.”
30
      (5)
Omit subsections (3) and (4).
      (6)
In subsection (5), for “Any other undertaking” substitute “An undertaking”.
      (7)
Omit subsection (6).
3     (1)
Section 81 (interim orders) is amended as follows.
      (2)
In subsection (1) for “Subsections (2) and (3)” substitute “Subsections (2) and
35
(2A)”.

Enterprise and Regulatory Reform Bill
Schedule 7 — Mergers: interim measures
159

      (3)
After subsection (2) insert—
“(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
5
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.”
      (4)
After subsection (2A) insert—
10
“(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.”
      (5)
Omit subsections (3) and (4).
      (6)
In subsection (5), for “Any other order” substitute “An order”.
15
      (7)
Omit subsection (6).
Interim measures: public interest and special interest cases
4     (1)
Schedule 7 (enforcement regime for public interest and special public
interest cases) is amended as follows.
      (2)
Omit paragraph 1 (interim undertakings).
20
      (3)
In paragraph 2 (interim orders), after sub-paragraph (2) insert—
   “(2A)
Sub-paragraph (2B) applies where—
(a)
an intervention notice or special intervention notice is in
force, and
(b)
the Secretary of State or the CMA has reasonable grounds
25
for suspecting that pre-emptive action has or may have
been taken.
     (2B)
The Secretary of State or (as the case may be) 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
30
for the purpose of mitigating its effects—
(a)
do anything mentioned in sub-paragraph (2)(b) to (d);
(b)
impose such other obligations, prohibitions or restrictions
as it considers appropriate for that purpose.”
      (4)
In that paragraph, after sub-paragraph (2B) insert—
35
“(2C)
A person may, with the consent of the Secretary of State or (as the
case may be) the CMA, take action or action of a particular
description where the action would otherwise constitute a
contravention of an order under this paragraph by the Secretary of
State or (as the case may be) the CMA.”
40
      (5)
In that paragraph, in sub-paragraph (4)—
(a)
omit “or the OFT”,
(b)
for “by the OFT” substitute “by the CMA”, and

Enterprise and Regulatory Reform Bill
Schedule 8 — Mergers: time-limits
160

(c)
omit “or (as the case may be) the OFT”.
      (6)
In that paragraph, in sub-paragraph (8), omit “1 or”.
      (7)
In that paragraph, in sub-paragraph (10), for the words from “the order” to
the end of the sub-paragraph substitute “—
(a)
the Secretary of State or (as the case may be) the CMA has
5
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; or
10
(b)
the order relates to a special merger situation which has
been, or may have been, created.”
      (8)
In that paragraph, after sub-paragraph (11) insert—
   “(12)
In this paragraph “pre-emptive action” means action which might
prejudice the reference or possible reference concerned under
15
section 45 or (as the case may be) 62 or impede the taking of any
action under this Part which may be justified by the Secretary of
State’s decisions on the reference.”
Interim measures: duration of interim orders under section 72
5     (1)
Section 72 (initial enforcement orders: completed mergers) is amended as
20
follows.
      (2)
Omit subsection (5).
      (3)
In subsection (6)—
(a)
in the words before paragraph (a), omit “section 81 or”, and
(b)
in paragraph (a), for the words from “at the end of” to the end of the
25
paragraph substitute “—
(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
30
(ii)
otherwise on the final determination of the
reference concerned;”.
Schedule 8
Section 24(2)

Mergers: time-limits
1
Part 3 of the 2002 Act (mergers) is amended as follows.
35
2
In section 22 (duty to make references in relation to completed mergers), in
subsection (3)—
(a)
before paragraph (a) insert—
“(za)
the period within which the CMA is required by
section 34ZA to decide whether the duty to make the
40
reference applies has expired without such a decision
having been made;”, and

Enterprise and Regulatory Reform Bill
Schedule 8 — Mergers: time-limits
161

(b)
in paragraph (a) omit “or 96(3)”.
3
In section 33 (duty to make references in relation to anticipated mergers), in
subsection (3)—
(a)
before paragraph (a) insert—
“(za)
the period within which the CMA is required by
5
section 34ZA to decide whether the duty to make the
reference applies has expired without such a decision
having been made;”, and
(b)
in paragraph (a) omit “or 96(3)”.
4
After section 34 insert—
10
“Supplementary provision: time-limits for decisions about references
34ZA
Time-limits for decisions about references
(1)
In carrying out its function of deciding whether to make a reference
under section 22 or 33, the CMA shall, within the initial period—
(a)
decide whether the duty to make a reference under the
15
section applies (taking account of the power under section
22(2) or (as the case may be) 33(2) and the operation of section
22(3) or (as the case may be) 33(3)); and
(b)
inform the persons carrying on the enterprises concerned by
notice of the decision and of the reasons for it.
20
(2)
Nothing in this section prevents the CMA from making a reference
under section 22 or 33 in the event that—
(a)
it decides that the duty to make a reference does not apply
because it is considering whether to accept undertakings
under section 73; but
25
(b)
no such undertakings are offered or accepted.
(3)
In this section—
“the initial period” means (subject to any extension under
section 34ZB) the period of 40 working days beginning
with—
30
(a)
where the CMA is carrying out its function in
consequence of the giving of a merger notice under
section 96, the first working day after the day on
which the CMA gives notice under section 96(2A) to
the person who gave the merger notice, and
35
(b)
in any other case, the first working day after the day
on which the CMA informs the persons carrying on
the enterprises concerned by notice that it has
sufficient information to enable it to begin an
investigation for the purposes of deciding whether to
40
make a reference;
“working day” means any day which is not—
(a)
a Saturday, a Sunday, Good Friday or Christmas Day,
or
(b)
a day which is a bank holiday in England and Wales.
45
(4)
For the purposes of paragraph (a) in the definition of “initial period”
in subsection (3), the CMA is carrying out its functions in