Enterprise and Regulatory Reform Bill (HC Bill 61)

Constitution of CMA groups

36 Where the chair is, by or under any enactment, required to constitute a
group under this Schedule (a “CMA group”), the chair must constitute the
group in accordance with this Part of this Schedule.

5Membership of CMA groups

37 (1) The members of a CMA group are to be selected by the chair.

(2) In selecting the members of a CMA group, the chair must comply with any
requirements imposed by or under any enactment.

(3) Subject to that, paragraph 38 has effect for the purposes of the membership
10of a CMA group.

38 (1) Each CMA group is to consist of at least three members of the CMA panel.

(2) Subject to sub-paragraphs (3) to (6), those members are to be such persons as
the chair may select.

(3) In the case of a newspaper merger reference group—

(a) 15the group must include at least one newspaper panel member;

(b) the members of the group (if any) who are not newspaper panel
members must be reporting panel members.

(4) In the case of a specialist communications reference group, the group must
include at least one, but not more than three, of the specialist
20communications panel members.

(5) In the case of a specialist utility group, the group must include at least one
of the specialist utility panel members.

(6) A newspaper panel member is not to be selected as a member of a CMA
group that is not a newspaper merger reference group.

(7) 25The chair may at any time appoint a reporting panel member to be an
additional member of a CMA group.

(8) The chair must appoint one of the members of a CMA group to chair the
group (the “group chair”).

39 The validity of anything done by a CMA group is not affected by—

(a) 30a vacancy;

(b) a defective appointment.

Termination of person’s membership of a CMA group

40 A member of the CMA panel may at any time resign from a CMA group by
giving written notice to this effect to the chair.

41 (1) 35Sub-paragraph (2) applies if the chair considers that—

(a) a member of a CMA group will be unable, for a substantial period, to
perform his or her duties as a member of the group, or

(b) because of a particular interest of a member of a CMA group, it is
inappropriate for him or her to remain a member of the group.

(2) The chair may remove the person in question from membership of the
group.

42 A person ceases to be a member of a CMA group on ceasing to be a member
of the CMA panel.

5Replacement of a member of a CMA group

43 (1) Sub-paragraph (2) applies if a person ceases to be a member of a CMA
group, whether by being removed under paragraph 41, or otherwise.

(2) The chair may select a replacement member of the group from the CMA
panel.

10Continuity on removal or replacement

44 (1) A person’s ceasing to be a member of a CMA group, whether by being
removed under paragraph 41, or otherwise, does not prevent—

(a) the group from continuing with anything begun before the person
ceased to be a member of it;

(b) 15any decision made or direction given by the person while a member
of the group from having effect after he or she has ceased to be a
member of the group.

(2) Sub-paragraph (1)—

(a) applies whether or not a replacement member of the group is
20selected under paragraph 43;

(b) does not affect any requirements imposed by or under any
enactment with respect to the constitution of a CMA group.

Attendance of other members

45 (1) At the invitation of the group chair of a CMA group, any reporting panel
25member who is not a member of the group may attend its meetings or
otherwise take part in its proceedings.

(2) But a person attending in response to such an invitation may not—

(a) vote in any proceedings of the group, or

(b) have a statement of his or her dissent from a conclusion of the group
30included in a report made by the group.

(3) Nothing in sub-paragraph (1) is to be taken to prevent a CMA group from
consulting any member of the CMA panel with respect to any matter or
question with which the group is concerned.

Powers of chair pending group’s constitution and first meeting

46 (1) 35While a CMA group is being constituted, the chair may take such steps as he
or she considers appropriate to facilitate the work of the group once it has
been constituted.

(2) The steps taken must be steps that it would be within the power of the group
to take, had it already been constituted.

47 (1) The chair may, on behalf of the CMA, exercise the power conferred by
section 37(1), 48(1) or 64(1) of the Enterprise Act 2002 in respect of the
reference of a matter—

(a) while a CMA group is being constituted in connection with the
5reference;

(b) after a CMA group has been so constituted, but before it has held its
first meeting.

(2) Sections 34C, 46D and 62A of the Enterprise Act 2002 have effect subject to
sub-paragraph (1).

10Performance of functions of chair with respect to constitution etc of CMA group

48 (1) A function of the chair that is specified in sub-paragraph (4) may, with the
consent of the CMA Board, be exercised on behalf of the chair by—

(a) a person who is a member of both the CMA panel and the CMA
Board, or

(b) 15a member of the CMA panel designated by the Secretary of State
(whether generally or specifically) for the purposes of this
paragraph.

(2) The consent referred to in sub-paragraph (1) must specify the identity of the
person by whom a function of the chair is to be exercised.

(3) 20It may be given—

(a) by reference generally to functions specified in sub-paragraph (4);

(b) by reference to specific functions, or functions of a particular
description;

(c) by reference generally to CMA groups;

(d) 25by reference to specific matters or specific CMA groups, or by
reference to matters or CMA groups of a particular description.

(4) The functions are—

(a) the chair’s functions under paragraph 33 and under this Part of this
Schedule;

(b) 30the chair’s functions by or under any other enactment in respect of
the constitution of a CMA group;

(c) the chair’s functions under—

(i) Schedule 4A to the Gas Act 1986;

(ii) Schedule 5A to the Electricity Act 1989;

(iii) 35Schedule 22 to the Energy Act 2004;

(iv) Schedule 2 to the Civil Aviation Act 2012.

Independence of groups

49 (1) In making decisions that they are required or permitted to make by virtue of
any enactment, CMA groups must act independently of the CMA Board.

(2) 40Nothing in sub-paragraph (1) prevents—

(a) the CMA Board from giving information in its possession to a CMA
group, or

(b) a CMA group giving information in its possession to the CMA
Board.

Casting votes

50 If a CMA group’s vote on any decision is tied, the group chair is to have a
casting vote.

Requirement to make rules of procedure for certain groups

51 (1) 5The CMA Board must make rules of procedure for merger reference groups,
market reference groups, and special reference groups.

(2) Those rules are subject to any provision made by or under any enactment in
respect of the procedure of a CMA group.

(3) Before making rules under this paragraph, the CMA Board must consult
10such persons as it considers appropriate.

(4) The CMA Board must publish rules made under this paragraph in whatever
manner it considers appropriate for bringing them to the attention of those
likely to be affected by them.

(5) Subject to rules made under this paragraph, and to any provision made by
15or under any enactment, a CMA group of a type referred to in sub-
paragraph (1) may determine its own procedure.

(6) In this paragraph and paragraph 53—

(a) “market reference group” means a CMA group constituted in
connection with a reference under section 131, 132 or 140A of the
20Enterprise Act 2002;

(b) “merger reference group” means a CMA group constituted in
connection with a reference under section 32 of the Water Industry
Act 1991 or section 22, 33, 45, or 62 of the Enterprise Act 2002;

(c) “special reference group” means a CMA group constituted in
25connection with a reference under—

(i) section 11 of the Competition Act 1980;

(ii) section 41E of the Gas Act 1986;

(iii) section 56C of the Electricity Act 1989;

(iv) section 12, 14 or 17K of the Water Industry Act 1991;

(v) 30article 15 of the Electricity (Northern Ireland) Order 1992 (SI
1992/231 (NI 1));

(vi) section 13 of, or Schedule 4A to, the Railways Act 1993;

(vii) article 15 of the Gas (Northern Ireland) Order 1996 (SI 1996/
275 (NI 2));

(viii) 35section 12 of the Transport Act 2000;

(ix) section 193 of the Communications Act 2003;

(x) article 3 of the Water Services etc (Scotland) Act 2005
(Consequential Provisions and Modifications) Order 2005.

52 (1) In determining how to proceed in accordance with rules made for it by the
40CMA Board under paragraph 51(1), and in determining its own procedure
under paragraph 51(5), a group must have regard to any guidance issued by
the CMA Board.

(2) Before issuing guidance for the purposes of this paragraph, or amending or
revoking it, the CMA Board must consult such persons as it considers
45appropriate.

53 (1) Rules made under paragraph 51 may—

(a) make different provision for different cases or different purposes;

(b) be varied or revoked by rules subsequently made under that
paragraph.

(2) 5They may in particular make provision—

(a) for particular stages of a merger investigation, market investigation,
or special investigation to be dealt with in accordance with a
timetable and for revision of that timetable;

(b) as to the documents and information that must be given to a relevant
10group in connection with a merger investigation, market
investigation or special investigation;

(c) as to the documents and information that a relevant group must give
to other persons in connection with such an investigation.

(3) Rules making provision as described in sub-paragraph (2)(a) or (2)(b) may,
15in particular, permit or require a relevant group to disregard documents or
information given after a particular date.

(4) Rules making provision as described in sub-paragraph (2)(c) may in
particular make provision for the notification or publication of, and for
consultation about, provisional findings of a relevant group.

(5) 20Rules made under paragraph 51 may make provision as to the quorum of
relevant groups.

(6) They may make provision—

(a) as to the extent (if any) to which persons interested or claiming to be
interested in a matter under consideration that is specified or
25described in the rules are allowed—

(i) to be present before or heard by a relevant group, either by
themselves or by their representatives;

(ii) to cross-examine witnesses;

(iii) otherwise to take part;

(b) 30as to the extent (if any) to which sittings of a relevant group are to be
held in public;

(c) generally in connection with any matters permitted by rules making
provision as described in paragraph (a) or (b) (including, in
particular, provision for a record of any hearings).

(7) 35Rules made under paragraph 51 may make provision for—

(a) the notification or publication of information relating to merger
investigations, market investigations or special investigations;

(b) consultation about such investigations.

(8) Rules made under paragraph 51 for market reference groups may make
40provision as to the involvement of any public interest expert in the market
investigation in connection with the reference under section 140A of the
Enterprise Act 2002 in relation to which the expert was appointed.

(9) For the purposes of this paragraph—

• “market investigation” means an investigation carried out by a market
  45reference group in connection with a reference under section 131, 132
  or 140A of the Enterprise Act 2002;

Enterprise and Regulatory Reform BillPage 85

• “merger investigation” means an investigation carried out by a merger
  reference group in connection with a reference under section 32 of
  the Water Industry Act 1991 or section 22, 33, 45, or 62 of the
  Enterprise Act 2002;

• 5“public interest expert” means a person appointed under section 141B
  of the Enterprise Act 2002 in relation to a reference under section
  140A(6) of that Act;

• “relevant group” means a market investigation group, a merger
  investigation group, or a special investigation group;

• 10“special investigation” means an investigation carried out by a special
  reference group in connection with a provision listed in paragraph
  51(6)(c).

Procedure of other CMA groups

54 (1) Subject to any special or general directions given by the Secretary of State,
15and to any provision made by or under any enactment, a CMA group that is
not a group of a type referred to in paragraph 51(1) may determine its own
procedure.

(2) It may, in particular, determine its quorum, and determine—

(a) the extent (if any) to which persons interested or claiming to be
20interested in a matter under consideration are allowed—

(i) to be present before or heard by it, either by themselves or by
their representatives;

(ii) to cross-examine witnesses;

(iii) otherwise to take part;

(b) 25the extent (if any) to which its sittings are to be held in public.

(3) In determining its procedure under sub-paragraph (1), a CMA group must
have regard to any guidance issued by the CMA Board.

CMA group decision: requirement for two thirds majority

55 For the purposes of paragraphs 56 to 58, a “qualifying majority decision” is
30a decision made by a CMA group which is that of at least two-thirds of the
members of the group.

56 (1) This paragraph applies for the purposes of Part 3 of the Enterprise Act 2002.

(2) Where a decision of a CMA group under section 35(1) or 36(1) of that Act
that there is an anti-competitive outcome is not a qualifying majority
35decision, it is to be treated as a decision under that section that there is not
an anti-competitive outcome.

(3) Where a decision of a CMA group under section 47 of that Act is not a
qualifying majority decision—

(a) in the case of a decision that a relevant merger situation has been
40created, it is to be treated as a decision under section 47 that no such
situation has been created;

(b) in the case of a decision that the creation of a relevant merger
situation has resulted, or may be expected to result, in a substantial
lessening of competition within any market or markets in the United
45Kingdom for goods and services, it is to be treated as a decision
under section 47 that the creation of that situation has not resulted,

or may be expected not to result, in such a substantial lessening of
competition;

(c) in the case of a decision that arrangements are in progress or in
contemplation which, if carried into effect, will result in the creation
5of a relevant merger situation, it is to be treated as a decision under
section 47 that no such arrangements are in progress or in
contemplation;

(d) in the case of a decision that the creation of such a situation as is
mentioned in paragraph (c) may be expected to result in a substantial
10lessening of competition within any market or markets in the United
Kingdom for goods and services, it is to be treated as a decision
under section 47 that the creation of that situation may be expected
not to result in such a substantial lessening of competition.

(4) Where a decision of a CMA group under section 63 of that Act is not a
15qualifying majority decision—

(a) in the case of a decision that a special merger situation has been
created, it is to be treated as a decision under section 63 that no such
situation has been created;

(b) in the case of a decision that arrangements are in progress or in
20contemplation which, if carried into effect, will result in the creation
of a special merger situation, it is to be treated as a decision under
section 63 that no such arrangements are in progress or in
contemplation.

(5) Expressions used in this paragraph are to be construed in accordance with
25Part 3 of the Enterprise Act 2002.

57 (1) This paragraph applies for the purposes of Part 4 of the Enterprise Act 2002.

(2) Where a decision under section 134, 141 or 141A of that Act is not a
qualifying majority decision—

(a) in the case of a decision on an ordinary reference that a feature or
30combination of features of a relevant market prevents, restricts or
distorts competition in connection with the supply or acquisition of
any goods or services in the United Kingdom or a part of the United
Kingdom, it is to be treated as a decision that the feature or (as the
case may be) combination of features of that relevant market does
35not prevent, restrict or distort such competition;

(b) in the case of a decision on a cross-market reference that a feature or
a combination of the features specified in the reference, as that
feature or combination of features relates to goods or services of one
or more than one of the descriptions so specified, prevents, restricts
40or 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, it is to be treated as a decision that that feature or
(as the case may be) combination of features as it relates to goods or
services of those descriptions does not prevent, restrict or distort
45such competition.

(3) Accordingly, a CMA group is to be treated as having decided under section
134, 141 or 141A that there is no adverse effect on competition in relation to
an ordinary reference or a cross-market reference if—

(a) one or more than one decision of the group, in relation to the
50reference, is to be treated as mentioned in sub-paragraph (2)(a) or (as
the case may be) (b), and

(b) there is, in relation to the reference, no other relevant decision of the
group.

(4) “Relevant decision”, in sub-paragraph (3)(b), means—

(a) in relation to an ordinary reference, a decision that is not to be treated
5as mentioned in sub-paragraph (2)(a), and which is that a feature or
combination of features of a relevant market prevents, restricts or
distorts competition in connection with the supply or acquisition of
any goods or services in the United Kingdom or a part of the United
Kingdom;

(b) 10in relation to a cross-market reference, a decision that is not to be
treated as mentioned in sub-paragraph (2)(b), and which is that a
feature or a combination of the features specified in the reference, as
that feature or combination of features relates to goods or services of
one or more than one of the descriptions so specified, prevents,
15restricts 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.

(5) Where a decision of a CMA group under section 141A of that Act is not a
qualifying majority decision, in the case of a decision under section 141A(4)
20that the feature or combination of features in question operates or may be
expected to operate against the public interest, it is to be treated as a decision
under section 141A that the feature or combination of features in question
does not operate nor may be expected to operate against the public interest.

(6) Expressions used in this paragraph are to be construed in accordance with
25Part 4 of the Enterprise Act 2002.

58 A decision made by a CMA group is also subject to any other provision
made by or under any enactment about decisions that are not qualifying
majority decisions.

Part 4 30Interpretation and transitional and transitory provision

Interpretation

59 (1) In this Schedule, “enactment” means—

(a) an enactment contained in this or any other Act;

(b) an enactment comprised in subordinate legislation within the
35meaning of the Interpretation Act 1978;

(c) an enactment contained in, or in an instrument made under, an Act
of the Scottish Parliament;

(d) a Measure or Act of the National Assembly for Wales;

(e) an enactment contained in, or made under, Northern Ireland
40legislation within the meaning of the Interpretation Act 1978.

(2) Any reference in this Schedule to an enactment includes a reference to an
enactment whenever passed or made.

60 References in this Schedule to the commencement date are to the date on
which section 19 comes into force.

Members of the Competition Commission

61 (1) This paragraph applies—

(a) in relation to any appointments under paragraph 1(1)(b) to the CMA
panel that are made before the abolition of the Competition
5Commission under section 20, to any person who is a panel member
of the Competition Commission and whose term of office as such is
not due to expire before the abolition of the Competition
Commission under that section;

(b) in relation to any other appointment under paragraph 1(1)(b) to the
10CMA panel, to a person who was a panel member of the Competition
Commission immediately prior to its abolition under section 20.

(2) A person to whom this paragraph applies may be appointed under
paragraph 1(1)(b) as a member of the CMA panel.

(3) But the terms of the person’s appointment as a member of the CMA panel
15must not be such that the sum of the period of his or her office as a member
of the CMA panel, and of the period of his or her office as a panel member
of the Competition Commission, exceeds eight years.

(4) Paragraph 4(1) applies for the purposes of the person’s re-appointment as a
member of the CMA panel as it does for the purposes of the re-appointment
20of a CMA panel member to whom this paragraph does not apply.

62 Except as provided for by paragraph 61, a person who holds or has held
office as a panel member of the Competition Commission at any time prior
to its abolition may not be appointed under paragraph 1(1)(b) as a member
of the CMA panel.

63 25References in paragraphs 61 and 62 to a panel member of the Competition
Commission are to a person appointed as a member of the Competition
Commission of a kind mentioned in paragraph 2(3) of Schedule 7 to the
Competition Act 1998.

Financial years of the CMA

64 (1) 30If the duration of the period beginning with the commencement date and
ending with the next 31 March is six months or more, the first financial year
of the CMA is that period.

(2) But if the duration of that period is less than six months, the first financial
year of the CMA is the period beginning with the commencement date, and
35ending with the 31 March in the year following the next 31 March after the
commencement date.

(3) The subsequent financial years of the CMA are each successive period of 12
months.

First annual plan of the CMA

65 (1) 40The CMA is to publish its first annual plan within the period of three months
beginning with the commencement date.

(2) The first annual plan is to relate to the period beginning with the date of
publication of the plan, and ending with the date on which the CMA’s first
financial year ends.

Section 20(3)

SCHEDULE 5 Amendments related to Part 3

Part 1 Transfer of functions under the 1998 Act to the CMA

1 5The Competition Act 1998 is amended as follows.

2 In section 6 (block exemptions), in subsections (1) and (6), for “OFT” (in each
place where it occurs) substitute “CMA”.

3 In section 8 (block exemptions: procedure), in subsections (1) to (3) and (5),
for “OFT” (in each place where it occurs) substitute “CMA”.

4 10In section 10 (parallel exemptions), in subsections (5), (7) and (8), for “OFT”
(in each place where it occurs) substitute “CMA”.

5 (1) Section 25 (power to investigate) is amended as follows.

(2) In subsections (1) and (8) to (11), for “OFT” (in each place where it occurs)
substitute “CMA”.

(3) 15In the heading, for “OFT” substitute “CMA”.

6 In section 26 (powers when conducting investigations), in subsections (1)
and (5), for “OFT” (in each place where it occurs) substitute “CMA”.

7 In section 27 (power to enter business premises without a warrant), in
subsections (1) and (3), for “OFT” (in each place where it occurs) substitute
20“CMA”.

8 (1) Section 28 (power to enter business premises under a warrant) is amended
as follows.

(2) In subsection (1)(b)(i), for “OFT” substitute “CMA”.

(3) In subsection (2)—

(a) 25for “OFT” (in each place where it occurs) substitute “CMA”, and

(b) for “OFT’s” substitute “CMA’s”.

9 In section 28A (power to enter domestic premises under a warrant), in
subsections (1)(b)(i) and (2), for “OFT” (in each place where it occurs)
substitute “CMA”.

10 30In section 31 (decisions following an investigation), in subsections (1) and
(2), for “OFT” (in each place where it occurs) substitute “CMA”.

11 In section 31A (commitments), in subsections (1) to (4), for “OFT” (in each
place where it occurs) substitute “CMA”.

12 In section 31B (effect of commitments under section 31A), in subsections (1)
35to (5), for “OFT” (in each place where it occurs) substitute “CMA”.

13 In section 31C (review of commitments), in subsections (1) and (2), for “OFT”
(in each place where it occurs) substitute “CMA”.

14 In section 31D (guidance), in subsections (1) to (3), (5), (6) and (8), for “OFT”
(in each place where it occurs) substitute “CMA”.