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 9 — Markets: cross-market references
169

12    (1)
Section 101 (merger notices: regulations) is amended as follows.
      (2)
In subsection (2), in paragraph (a), omit “section 97(1), (2), (3) or (4) or”.
      (3)
In that subsection, omit paragraphs (c) to (f).
13    (1)
Section 124 (order and regulations under Part 3) is amended as follows.
      (2)
In subsection (4)—
5
(a)
after “section” insert “34ZC(6),”,
(b)
after “40(8),” insert “41B(6),”, and
(c)
after “68,” insert “, 73B(6),”.
      (3)
In subsection (5)—
(a)
after “67(7)),” insert “34ZC(6),”,
10
(b)
after “40(8),” insert “41B(6),”, and
(c)
after “65(3)),” insert “73B(6),”.
Schedule 9
Section 26(4)

Markets: cross-market references
1
Part 4 of the 2002 Act (market investigations) is amended as follows.
15
2     (1)
Section 133 (contents of references) is amended as follows.
      (2)
In subsection (1)—
(a)
omit the “and” following paragraph (b),
(b)
in paragraph (c), at the beginning insert “in the case of an ordinary
reference,”, and
20
(c)
after paragraph (c) insert “; and
(d)
in the case of a cross-market reference, the feature or
features concerned and the descriptions of goods or
services to which it or they relate.”
      (3)
In subsection (2)—
25
(a)
in paragraph (a), after “a supply” insert “or, in the case of a cross-
market reference, supplies”, and
(b)
in paragraph (b), after “an acquisition” insert “or, in the case of a
cross-market reference, acquisitions”.
3     (1)
Section 134 (questions to be decided on market investigation references) is
30
amended as follows.
      (2)
In subsection (1), for “a market investigation” substitute “an ordinary”.
      (3)
After subsection (1) insert—
“(1A)
The CMA shall, on a cross-market reference, decide in relation to
each feature and each combination of the features specified in the
35
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.”
40

Enterprise and Regulatory Reform Bill
Schedule 9 — Markets: cross-market references
170

      (4)
In subsection (2), for “a market investigation” substitute “an ordinary”.
      (5)
After subsection (2) insert—
“(2A)
For the purposes of this Part, in relation to a cross-market reference,
there is an adverse effect on competition if a feature or a combination
of the features specified in the reference, as that feature or
5
combination of features relates to goods or services of one or more
than one of the descriptions so specified, prevents, restricts or
distorts competition in connection with the supply or acquisition of
any goods or services in the United Kingdom or a part of the United
Kingdom.”
10
      (6)
In subsection (5)(a), after “the market” insert “or markets”.
      (7)
In subsection (7), after “the market” insert “or markets”.
      (8)
In subsection (8)(a)(i), after “the market” insert “or markets”.
4
In section 138 (duty to remedy adverse effects), in subsection (5), after “the
market” insert “or markets”.
15
5     (1)
Section 141 (questions to be decided where intervention notice under section
139(1) is in force) is amended as follows.
      (2)
In subsection (2), after “shall” insert “, on an ordinary reference,”.
      (3)
After subsection (2) insert—
“(2A)
The CMA shall, on a cross-market reference, decide in relation to
20
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
25
Kingdom or a part of the United Kingdom.”
      (4)
In subsection (6), after “the market” insert “or markets”.
6
In section 147 (remedial action by the Secretary of State), in subsection (5),
after “the market” insert “or markets”.
7
In section 154 (undertakings in lieu of references), in subsection (4), after “the
30
market” insert “or markets”.
8     (1)
Section 156 (effect of undertakings under section 154) is amended as follows.
      (2)
Before subsection (1) insert—
“(A1)
No market investigation reference shall be made by the CMA or the
appropriate Minister in relation to any feature, or combination of
35
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 154 within the previous 12
months;
40
(b)
the feature or combination of features to which the
undertaking or group of undertakings relates is the same as
the feature or combination of features to which the reference
would relate; and

Enterprise and Regulatory Reform Bill
Schedule 10 — Markets: public interest interventions
171

(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.”
      (3)
In subsection (1)—
(a)
in the words before paragraph (a), for “market investigation”
5
substitute “ordinary”,
(b)
in paragraph (a), after “has” insert “, instead of making an ordinary
reference,”, and
(c)
in paragraph (b), for “the feature, or combination of features, relates”
substitute “the reference would relate”.
10
      (4)
In subsection (2), for “Subsection (1) does” substitute “Subsections (A1) and
(1) do”.
9     (1)
Section 184 (index of defined expressions for Part 4) is amended as follows.
      (2)
In the second column of the entry for “Adverse effect on competition”, after
“134(2)” insert “and (2A)”.
15
      (3)
After the entry in the table for “Consumer” insert—

“Cross-market reference
Section 131(6)”.

      (4)
Before the entry in the table for “Public interest consideration” insert—

“Ordinary reference
Section 131(6)”.

Schedule 10
20
Section 27(10)

Markets: public interest interventions
1
Part 4 of the 2002 Act (market investigations) is amended as follows.
2     (1)
Section 131 (power to make market investigation references) is amended as
follows.
      (2)
In subsection (4), after “132” insert “or 140A(5)”.
25
      (3)
In subsection (6), in the definition of “market investigation reference”, after
“132” insert “or 140A(5)”.
3
In section 132 (ministerial power to make references), in subsection (4)—
(a)
after “if” insert “—
(a)
”, and
30
(b)
at the end insert “; or
(b)
a reference has been made under section 140A(5) in
relation to the same matter but has not been finally
determined.”

Enterprise and Regulatory Reform Bill
Schedule 10 — Markets: public interest interventions
172

4
In section 135 (variation of references), in subsection (1), for “by it or (as the
case may be) by him” substitute “by it under section 131 or (as the case may
be) by the appropriate Minister under section 132”.
5     (1)
Section 140 (supplementary provision about intervention notices under
section 139(1)) is amended as follows.
5
      (2)
In subsection (1)—
(a)
for paragraphs (a) and (b) substitute—
“(a)
the matter to which the market study notice
concerned relates;
(b)
the date of publication of that notice;”, and
10
(b)
in paragraph (c), for “case” substitute “matter”.
      (3)
In subsection (2), for “case” (in the second place where it occurs) substitute
“matter”.
      (4)
After subsection (4) insert—
“(4A)
An intervention notice under section 139(1) shall also cease to be in
15
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
20
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
25
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.
30
(4B)
Subsection (4C) 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
35
matter within the period permitted by section 131B(4) and
given it to the Secretary of State in accordance with section
140A(2); and
(c)
the report contains the decision of the CMA that it should
make a reference in relation to the matter concerned under
40
section 131.
(4C)
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
45
having been made in accordance with the requirements
imposed by section 131B.”

Enterprise and Regulatory Reform Bill
Schedule 10 — Markets: public interest interventions
173

      (5)
In subsection (5)—
(a)
before paragraph (a) insert—
“(za)
the CMA accepts an undertaking under section 154
instead of making a reference under section 131 in
relation to the matter;
5
(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
10
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(2) has expired and no
such report has been so prepared or no such action
has been taken;
15
(zd)
the Secretary of State makes a reference under section
140A(4) in relation to the matter;”,
(b)
in paragraph (a), after “143(1) or (3)” insert “or (as the case may be)
143A(2) or (3)”,
(c)
in paragraph (c), after “143(1)” insert “or (as the case may be)
20
143A(2)”,
(d)
in paragraph (d), at the end insert “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)
in paragraph (e), at the end insert “or (as the case may be) decides
25
under section 146A(2) to make no finding at all in relation to the
matter”, and
(f)
in paragraph (f), after “147(2)” insert “or (as the case may be)
147A(2)”.
      (6)
In subsection (6)—
30
(a)
before paragraph (a) insert—
“(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;”,
35
(b)
in paragraph (a), after “(5)” insert “(zc),”, and
(c)
after paragraph (a) insert—
“(aa)
in a case falling within subsection (5)(zd), the making
of the reference concerned;”.
      (7)
After subsection (6) insert—
40
“(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 154, be treated as a reference
to the acceptance of the last undertaking in the group; but
undertakings which vary, supersede or revoke earlier undertakings
45
shall be disregarded for the purposes of subsections (5)(za) and
(6)(za).”
      (8)
In subsection (7), after “147(2)” insert “or (as the case may be) 147A(2)”.

Enterprise and Regulatory Reform Bill
Schedule 10 — Markets: public interest interventions
174

6
After section 140A (inserted by section 27) insert—
“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
5
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.”
10
7     (1)
Section 141 (questions to be decided where section 139(1) intervention notice
is in force) is amended as follows.
      (2)
For subsection (1) substitute—
“(1)
This section applies where the Secretary of State makes a restricted
PI reference.”
15
      (3)
For the heading, substitute “Restricted PI references: questions to be decided
by CMA”.
8     (1)
Section 142 (investigations and reports) is amended as follows.
      (2)
In subsection (1)—
(a)
for the words from the beginning to “the Commission” substitute
20
“Where the Secretary of State makes a restricted PI reference or a full
PI reference, the CMA”, and
(b)
after “section 143(1) or (3)” insert “or (as the case may be) 143A(2)
or (3)”.
      (3)
In subsection (2)—
25
(a)
in paragraph (a), at the end insert “or (as the case may be) 141A”,
(b)
omit the “and” after paragraph (b), and
(c)
after paragraph (c) insert “; 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
30
public interest expert, a summary of the views of the
expert.”
      (4)
After subsection (2) insert—
   “(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
35
taken in relation to it under section 143A(2) or (3).”
9     (1)
Section 143 (publication etc of reports) is amended as follows.
      (2)
Before subsection (1) insert—
“(A1)
This section applies in relation to a report prepared under section 142
in respect of a restricted PI reference.”
40
      (3)
In subsection (1), in the words before paragraph (a), for “a report under
section 142” substitute “the report”.

Enterprise and Regulatory Reform Bill
Schedule 10 — Markets: public interest interventions
175

      (4)
Omit subsection (2).
      (5)
In subsection (3), for “a report under section 142” substitute “the report”.
      (6)
Omit subsections (5) to (8).
      (7)
For the heading substitute “Restricted PI references: publication etc of
reports of CMA”.
5
10
After section 143 insert—
“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—
10
(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
15
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
20
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
25
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
30
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
35
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).”
11    (1)
Section 144 (time-limits for investigations and reports: Part 4) is amended as
40
follows.
      (2)
In subsection (1)—
(a)
for “the date of the reference” substitute “the relevant date”, and
(b)
for the words from “publish it” to the end substitute “publish it
under section 143(1) or 143A(2) or (as the case may be) give it to the
45
Secretary of State in accordance with section 143(3) or 143A(3).”