Enterprise and Regulatory Reform Bill (HC Bill 61)

Enterprise and Regulatory Reform BillPage 180

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) 5In subsection (4)—

(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) 10after “67(7)),” insert “34ZC(6),”,

(b) after “40(8),” insert “41B(6),”, and

(c) after “65(3)),” insert “73B(6),”.

Section 27(4)

SCHEDULE 9 Markets: cross-market references

1 15Part 4 of the 2002 Act (market investigations) is amended as follows.

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
20reference,”, and

(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) 25In subsection (2)—

(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) 30Section 134 (questions to be decided on market investigation references) is
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
35each 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
40Kingdom or a part of the United Kingdom.

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(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
5of 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 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
10Kingdom.

(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
15market” insert “or markets”.

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) 20The CMA shall, on a cross-market reference, decide in relation to
each feature and each combination of the features specified in the
reference, whether the feature or combination of features, as it relates
to goods or services of one or more than one of the descriptions so
specified, prevents, restricts or distorts competition in connection
25with the supply or acquisition of any goods or services in the United
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 30In section 154 (undertakings in lieu of references), in subsection (4), after “the
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
35appropriate Minister in relation to any feature, or combination of
features, of a market in the United Kingdom for goods or services
if—

(a) the CMA has accepted an undertaking or group of
undertakings under section 154 within the previous 12
40months;

(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

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(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) 5in the words before paragraph (a), for “market investigation”
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”
10substitute “the reference would relate”.

(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
15“134(2)” insert “and (2A)”.

(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).

Section 28(10)

20SCHEDULE 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) 25In subsection (4), after “132” insert “or 140A(6)”.

(3) In subsection (6), in the definition of “market investigation reference”, after
“132” insert “or 140A(6)”.

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(6) in
relation to the same matter but has not been finally
determined.

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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
5section 139(1)) is amended as follows.

(2) In subsection (1)—

(a) for paragraphs (a) and (b) substitute—

(a) the matter to which the market study notice or (as the
case may be) the consultation under section 169
10concerned relates;

(b) the date of publication of that notice or (as the case
may be) on which the process of consultation began;”,
and

(b) in paragraph (c), for “case” substitute “matter”.

(3) 15In 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
force if—

(a) 20it mentions a public interest consideration which was not
finalised on the giving of the notice or public interest
considerations which, at that time, were not finalised;

(b) no other public interest consideration is mentioned in the
notice;

(c) 25at least 24 weeks has elapsed since the giving of the notice;

(d) the public interest consideration mentioned in the notice has
not been finalised within that period of 24 weeks or (as the
case may be) none of the public interest considerations
mentioned in the notice has been finalised within that period
30of 24 weeks; and

(e) the Secretary of State has not, by the end of that period of 24
weeks, made a reference under section 140A in relation to the
matter.

(4B) Subsection (4D) applies in a case where—

(a) 35an intervention notice ceases to be in force in accordance with
subsection (4A);

(b) the CMA has, before the time at which the notice ceases to be
in force, prepared a market study report in relation to the
matter within the period permitted by section 131B(4) and
40given it to the Secretary of State in accordance with section
140A(3)(b); and

(c) the report contains the decision of the CMA that it should
make a reference in relation to the matter concerned under
section 131.

(4C) 45Subsection (4D) also applies in a case where—

(a) an intervention notice ceases to be in force in accordance with
subsection (4A); and

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(b) the CMA has, before the time at which the notice ceases to be
in force—

(i) decided that it should make an ordinary reference or
a cross-market reference under section 131 in relation
5to the matter concerned; and

(ii) given a document containing its decision, the reasons
for it and such information as the CMA considers
appropriate for facilitating a proper understanding of
the reasons for its decision to the Secretary of State in
10accordance with section 140A(3)(c).

(4D) In a case to which this subsection applies—

(a) the CMA shall, as soon as reasonably practicable, make a
reference in relation to the matter under section 131; and

(b) the reference is to be treated for the purposes of this Part as
15having been made in accordance with the requirements
imposed by this Part.

(5) In subsection (5)—

(a) before paragraph (a) insert—

(za) the CMA accepts an undertaking under section 154
20instead of making a reference under section 131 in
relation to the matter;

(zb) the CMA publishes notice that it has otherwise
decided not to make a reference under section 131 in
relation to the matter;

(zc) 25the period permitted for the preparation by the CMA
of the market study report in relation to the matter
and for the report to be published under section
131B(4) or (as the case may be) given to the Secretary
of State under section 140A(3) has expired and no
30such report has been so prepared or no such action
has been taken;

(zd) the Secretary of State makes a reference under section
140A(5) in relation to the matter;,

(b) in paragraph (a), after “143(1) or (3)” insert “or (as the case may be)
35143A(2) or (3)”,

(c) in paragraph (c), after “143(1)” insert “or (as the case may be)
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
40within the period required by subsection (6) of that section”,

(e) in paragraph (e), at the end insert “or (as the case may be) decides
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)
45147A(2)”.

(6) In subsection (6)—

(a) before paragraph (a) insert—

(za) in a case falling within subsection (5)(za), the
acceptance of the undertaking concerned;

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(zb) in a case falling within subsection (5)(zb), the
publication of the notice concerned;,

(b) in paragraph (a), after “(5)” insert “(zc),”, and

(c) after paragraph (a) insert—

(aa) 5in a case falling within subsection (5)(zd), the making
of the reference concerned;.

(7) After subsection (6) insert—

(6A) In subsection (6)(za) the reference to the acceptance of the
undertaking concerned shall, in a case where the CMA has accepted
10a 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
shall be disregarded for the purposes of subsections (5)(za) and
(6)(za).

(8) 15In subsection (7), after “147(2)” insert “or (as the case may be) 147A(2)”.

6 After section 140A (inserted by section 28) 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) 20The Secretary of State shall consult the CMA before varying any such
reference.

(3) But subsection (2) does not apply if the CMA requested the variation
concerned.

(4) No variation under this section is capable of altering the public
25interest consideration or considerations specified in the reference.

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
30PI reference.

(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) 35for the words from the beginning to “the Commission” substitute
“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) 40In subsection (2)—

(a) in paragraph (a), at the end insert “or (as the case may be) 141A”,

(b) omit the “and” after paragraph (b), and

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(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
public interest expert, a summary of the views of the
5expert.

(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
taken in relation to it under section 143A(2) or (3).

9 (1) 10Section 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.

(3) In subsection (1), in the words before paragraph (a), for “a report under
15section 142” substitute “the report”.

(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
20reports of CMA”.

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) 25The CMA shall publish the report if it contains—

(a) the decision of the CMA that there is no adverse effect on
competition;

(b) the decision of the CMA that there is an adverse effect on
competition but that the feature or combination of features
30which gave rise to it does not operate and may not be
expected to operate against the public interest; or

(c) the decisions of the CMA that there is one or more than one
adverse effect on competition and that one or more than one
of the features or combinations of features which gave rise to
35an adverse effect on competition operates or may be expected
to operate against the public interest but, on the question
mentioned in section 141A(5)(a), and in relation to each effect
adverse to the public interest concerned, that no action
should be taken by the Secretary of State.

(3) 40The CMA shall give the report to the Secretary of State if it contains
the decisions of the CMA—

(a) that there is one or more than one adverse effect on
competition and that one or more than one of the features or
combinations of features which gave rise to an adverse effect

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on competition operates or may be expected to operate
against the public interest; and

(b) in relation to at least one effect adverse to the public interest
concerned, that action should be taken by the Secretary of
5State.

(4) The Secretary of State shall publish, no later than publication of the
Secretary of State’s decision under section 146A(2) in relation to the
case, a report of the CMA given to the Secretary of State under
subsection (3) and not required to be published by virtue of section
10148A(3).

11 (1) Section 144 (time-limits for investigations and reports: Part 4) is amended as
follows.

(2) In subsection (1)—

(a) for “the date of the reference” substitute “the relevant date”, and

(b) 15for 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
Secretary of State in accordance with section 143(3) or 143A(3).”

(3) After subsection (1) insert—

(1A) For the purposes of subsection (1), the “relevant date” is—

(a) 20in the case of a report in relation to a restricted PI reference or
to a full PI reference which specifies that the Secretary of State
does not propose to appoint a public interest expert, the date
of the reference;

(b) in the case of a report in relation to a full PI reference which
25specifies that the Secretary of State does propose to appoint a
public interest expert, the earliest of the following—

(i) the date of the appointment of the expert;

(ii) the date on which the Secretary of State gives notice to
the CMA that the Secretary of State no longer intends
30to appoint such an expert;

(iii) the end of the period of 2 months beginning with the
date of the reference.

(4) In subsection (4), after “143(1) or (3)” insert “or (as the case may be) 143A(2)
or (3)”.

12 (1) 35Section 145 (restrictions where public interest considerations not finalised:
Part 4) is amended as follows.

(2) In subsection (2), after “143(3)” insert “or (as the case may be) 143A(3)”.

(3) In subsection (3), after “141(3)” insert “or (as the case may be) 141A(4) and
(5).”

(4) 40In subsection (4), after “141(3)” insert “or (as the case may be) 141A(4) and
(5).”

13 (1) Section 146 (decision of Secretary of State) is amended as follows.

(2) In subsection (1), in the words before paragraph (a), for “report of the
Commission” substitute “report of the CMA in relation to a restricted PI
45reference”.

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(3) In the heading, at the beginning, insert “Restricted PI references:”.

14 After section 146 insert—

146A Full PI references: decision of Secretary of State

(1) Subsection (2) applies where the Secretary of State has received a
5report of the CMA in relation to a full PI reference which—

(a) has been prepared under section 142;

(b) contains the decisions of the CMA that there is one or more
than one adverse effect on competition and that one or more
than one of the features or combinations of features that gave
10rise to an adverse effect on competition operates or may be
expected to operate against the public interest and that, in
relation to at least one effect adverse to the public interest
concerned, action should be taken by the Secretary of State;
and

(c) 15has been given to the Secretary of State as required by section
143A(3).

(2) The Secretary of State shall decide whether to make an adverse
public interest finding in relation to the matter and whether to make
no finding at all in the matter.

(3) 20For the purposes of this Part, the Secretary of State makes an adverse
public interest finding in relation to a matter if, in relation to that
matter, the Secretary of State decides—

(a) that there is an adverse effect on competition;

(b) that there is one or more than one admissible public interest
25consideration which is relevant to the matter; and

(c) taking account only of any adverse effect on competition and
any relevant admissible public interest consideration or
considerations, that any feature or combination of features
which gave rise to an adverse effect on competition operates
30or may be expected to operate against the public interest.

(c)(c)taking account only of any adverse effect on competition and
any relevant admissible public interest consideration or
considerations, that any feature or combination of features
which gave rise to an adverse effect on competition operates
35or may be expected to operate against the public interest.

(4) The Secretary of State may make no finding at all in a matter only if
the Secretary of State decides that there is no admissible public
interest consideration which is relevant to a consideration of the
matter concerned.

(5) 40In deciding whether to make an adverse public interest finding
under subsection (2), the Secretary of State shall accept the decision
of the CMA as to whether there is an adverse effect on competition
in relation to the matter.

(6) The Secretary of State shall make and publish the decision under
45subsection (2) within the period of 90 days beginning with the receipt
of the report of the CMA under section 142.

(7) In this section “admissible public interest consideration” means a
public interest consideration which—

(a) was mentioned in the intervention notice concerned; and

(b) 50was not disregarded by the CMA for the purposes of its
report under section 142.

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15 In section 147 (remedial action by Secretary of State), in the heading, at the
beginning, insert “Restricted PI references:”.

16 After section 147 insert—

147A Full PI references: remedial action by Secretary of State

(1) 5Subsection (2) applies where the Secretary of State has decided under
subsection (2) of section 146A within the period required by
subsection (6) of that section to make an adverse public interest
finding in relation to a matter and has published the decision within
the period so required.

(2) 10The Secretary of State may take such action under section 159 or 161
as the Secretary of State considers to be reasonable and practicable to
remedy, mitigate or prevent any of the effects adverse to the public
interest which have resulted from, or may be expected to result from,
the features or combinations of features in question.

(3) 15In making a decision under subsection (2), the Secretary of State
shall, in particular, have regard to the report of the CMA under
section 142.

(4) In making a decision under subsection (2), the Secretary of State may,
in particular, have regard to—

(a) 20the need to achieve as comprehensive a solution as is
reasonable and practicable to the effects adverse to the public
interest concerned; and

(b) any detrimental effects on customers so far as resulting from
those effects.

17 (1) 25Section 148 (reversion of the matter) is amended as follows.

(2) Omit subsections (3) to (5).

(3) For the heading substitute “Restricted PI references: reversion of the matter
to CMA”.

18 After section 148 insert—

148A 30 Full PI references: reversion of the matter to CMA

(1) This section applies if—

(a) the Secretary of State decides under section 146A(2) to make
no finding at all in the matter; or

(b) the Secretary of State fails to make and publish the decision
35under subsection (2) of section 146A within the period
required by subsection (6) of that section.

(2) The CMA shall proceed under section 138 as if—

(a) a reference under section 131 had been made (in accordance
with the requirements imposed by this Part) instead of a full
40PI reference; and

(b) its report had been prepared and published under section 136
within the period permitted by section 137.

(3) The CMA shall publish the report which has been prepared by it
under section 142 (if still unpublished) as soon as it becomes able to
45proceed by virtue of subsection (2).