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 10 — Markets: public interest interventions
208

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
State.
5
(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
148A(3).”
10
11    (1)
Section 144 (time-limits for investigations and reports in public interest
cases) is amended as 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
15
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)
in the case of a report in relation to a restricted PI reference or
20
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
specifies that the Secretary of State proposes to appoint a
25
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
to appoint such an expert;
30
(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)
Section 145 (restrictions where public interest considerations not finalised:
35
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)
In subsection (4), after “141(3)” insert “or (as the case may be) 141A(4) and
40
(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
reference”.
45

Enterprise and Regulatory Reform Bill
Schedule 10 — Markets: public interest interventions
209

      (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
report of the CMA in relation to a full PI reference which—
5
(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
rise to an adverse effect on competition operates or may be
10
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)
has been given to the Secretary of State as required by section
15
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)
For the purposes of this Part, the Secretary of State makes an adverse
20
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
consideration which is relevant to the matter; and
25
(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
or may be expected to operate against the public interest.
30
(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)
In deciding whether to make an adverse public interest finding
35
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
subsection (2) within the period of 90 days beginning with the receipt
40
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)
was not disregarded by the CMA for the purposes of its
45
report under section 142.”

Enterprise and Regulatory Reform Bill
Schedule 10 — Markets: public interest interventions
210

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)
Subsection (2) applies where the Secretary of State has decided under
5
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)
The Secretary of State may take such action under section 159 or 161
10
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)
In making a decision under subsection (2), the Secretary of State
15
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)
the need to achieve as comprehensive a solution as is
20
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)
Section 148 (reversion of the matter) is amended as follows.
25
      (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
Full PI references: reversion of the matter to CMA
30
(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
under subsection (2) of section 146A within the period
35
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
PI reference; and
40
(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
proceed by virtue of subsection (2).
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Enterprise and Regulatory Reform Bill
Schedule 10 — Markets: public interest interventions
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(4)
In relation to proceedings by virtue of subsection (2), the reference in
section 138(3) to decisions of the CMA included in its report by virtue
of section 134(4) is to be construed as a reference to decisions which
were included in the report of the CMA by virtue of section 141A(6).
(5)
Where the CMA becomes under a duty to proceed as mentioned in
5
subsection (2), references in this Part to a reference under section 131,
so far as necessary, are to be construed accordingly.
(6)
Where the CMA, in proceeding by virtue of subsection (2), intends to
proceed in a way which is not consistent with its decisions as
included in its report by virtue of section 141A(6), it shall not so
10
proceed without the consent of the Secretary of State.
(7)
The Secretary of State shall not withhold consent under subsection
(6) unless the Secretary of State believes that the proposed alternative
way of proceeding will operate against the public interest.
(8)
For the purposes of subsection (7) a proposed alternative way of
15
proceeding will operate against the public interest only if any
admissible public interest consideration or considerations outweigh
the considerations which have led the CMA to propose proceeding
in that way.
(9)
In deciding whether to withhold consent under subsection (6), the
20
Secretary of State shall accept the CMA’s view of what, if the only
relevant consideration were how to remedy, mitigate or prevent the
adverse effect on competition concerned or any detrimental effect on
customers so far as resulting from the adverse effect on competition,
would be the most appropriate way to proceed.
25
(10)
In this section “admissible public interest consideration” has the
same meaning as in section 146A.”
19    (1)
Section 149 (intervention notices under section 139(2)) is amended as
follows.
      (2)
In subsection (1)(c), for “case” substitute “proposal to accept the
30
undertaking”.
      (3)
In subsection (2), for “case” (in the second place where it occurs) substitute
“proposal to accept the undertaking”.
20
In section 150 (power of veto of Secretary of State: undertakings in lieu),
before subsection (1) insert—
35
“(A1)
Where an intervention notice under subsection 139(1) is in force, the
CMA shall not, without the consent of the Secretary of State, accept
any proposed undertaking under section 154 in relation to the matter
concerned.”
21    (1)
Section 151 (further interaction of intervention notices with general
40
procedure) is amended as follows.
      (2)
For subsection (1) substitute—
“(1)
Sections 134(1), (1A), (4), (6) and (7), 136(1) to (6), 137(1) to (6), 138
and 138A do not apply in relation to a restricted PI reference or a full
PI reference.”
45

Enterprise and Regulatory Reform Bill
Schedule 10 — Markets: public interest interventions
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      (3)
In subsection (2), for the words from “, the Commission” to the end
substitute “at a time after the Secretary of State has made a restricted PI
reference or a full PI reference, the CMA shall proceed as if the reference
concerned had instead been made under section 131 (in accordance with the
requirements imposed by this Part).”
5
      (4)
In subsection (4), for the words from “, the Commission shall” to the end
substitute “, the CMA shall proceed as if the restricted PI reference or (as the
case may be) the full PI reference concerned had instead been made by the
CMA under section 131 (in accordance with the requirements imposed by
this Part).”
10
      (5)
For the heading, substitute “Public interest intervention cases: interaction
with general procedure”.
22
In section 152 (certain duties in relation to providing information), omit
subsection (2).
23
In section 155 (undertakings in lieu: procedural requirements), in subsection
15
(3)(a), at the end insert “or (but for the effect of section 140A(3)) it would
have had power to make and which it would otherwise have intended to
make”.
24    (1)
Section 157 (interim undertakings: Part 4) is amended as follows.
      (2)
In subsection (1)(b), after “143(3)” insert “or (as the case may be) 143A(3)”.
20
      (3)
In subsection (6)—
(a)
in the definition of “pre-emptive action”, for “or (as the case may be)
147(2)” substitute “, 147(2) or (as the case may be) 147A(2)”, and
(b)
for the definition of “relevant authority” substitute—
““the relevant authority” means—
25
(a)
in the case of a restricted PI reference or a full
PI reference, the Secretary of State;
(b)
in any other case, the CMA.”
25
In section 158 (interim orders: Part 4), in subsection (1)(b), after “143(3)”
insert “or (as the case may be) 143A(3)”.
30
26
In section 159 (final undertakings: Part 4), in subsection (2), after “147” insert
“or (as the case may be) 147A”.
27    (1)
Section 160 (order-making power where final undertakings not fulfilled:
Part 4) is amended as follows.
      (2)
In subsection (2), for “or (as the case may be) 147(2)” substitute “, 147(2) or
35
(as the case may be) 147A(2)”.
      (3)
In subsection (3), for “or (as the case may be) 147” substitute “or 147 or (as
the case may be) subsections (3) and (4) of section 147A”.
28
In section 161 (final orders: Part 4), in subsection (2), after “147” insert “or (as
the case may be) 147A”.
40
29
In section 169 (certain duties of relevant authorities to consult: Part 4), in
subsection (6)—
(a)
in the definition of “relevant authority”, at the end insert “or the
Secretary of State”,

Enterprise and Regulatory Reform Bill
Schedule 10 — Markets: public interest interventions
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(b)
in the definition of “relevant decision”, in paragraph (b), after
“appropriate Minister” (in the first place where it occurs) insert
“(other than the Secretary of State acting alone)”, and
(c)
also in that definition, after paragraph (b) insert—
“(ba)
in the case of the Secretary of State, any decision by
5
the Secretary of State—
(i)
to make a reference under section 132;
(ii)
to vary under section 135 such a reference;
(iii)
in a case where the Secretary of State is
required to make a reference under section
10
140A, whether to make a reference under
subsection (5) or (6) of that section; or
(iv)
to vary under section 140B a reference made
under section 140A(6).”
30    (1)
Section 172 (further publicity requirements: Part 4) is amended as follows.
15
      (2)
In subsection (1), in paragraph (a), after “section 131” insert “, other than a
reference treated as so made by virtue of section 140A(5)(b)”.
      (3)
In subsection (2), omit paragraph (d).
      (4)
In subsection (3)—
(a)
after paragraph (d) insert—
20
“(da)
any reference made by him under section 140A(5) or
(6);
(db)
any variation made by him under section 140B of a
reference under section 140A(6);”, and
(b)
in paragraph (e), after “147(2)” insert “or (as the case may be)
25
147A(2)”.
      (5)
In subsection (7), omit “or (2)(d)”.
      (6)
In subsection (7A) (inserted by Schedule 12), at the end insert “or (3)(da)”.
      (7)
In subsection (8), in paragraph (a), after “146(2)” insert “or 146A(2)”.
      (8)
In subsection (10), after “147(2)” insert “or 147A(2)”.
30
31
In section 177 (excisions from reports: Part 4), in subsection (5), omit “, 143(2)
and (5) to (7), 148(3) to (5)”.
32    (1)
Section 183 (interpretation: Part 4) is amended as follows.
      (2)
In subsection (3), in paragraph (a), for the words before sub-paragraph (i)
substitute “where the reference is made under section 131 or 132—”.
35
      (3)
In that subsection, in paragraph (b)—
(a)
for the words before sub-paragraph (i) substitute “where the
reference is a restricted PI reference or a full PI reference—”,
(b)
in sub-paragraph (i), after “143(1) or (3)” insert “or (as the case may
be) 143A(2) or (3)”,
40
(c)
in sub-paragraph (ii), omit “(disregarding the fact that the notice was
given)”,
(d)
in sub-paragraph (iii), after “143(1)” insert “or (as the case may be)
143A(2)”,

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Schedule 10 — Markets: public interest interventions
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(e)
in sub-paragraph (iv), omit “(disregarding the fact that the notice
was given)”,
(f)
for sub-paragraph (v) substitute—
“(v)
the Secretary of State has failed to make and
publish a decision under subsection (2) of
5
section 146 within the period permitted by
subsection (3) of that section or (as the case
may be) under subsection (2) of section 146A
within the period permitted by subsection (6)
of that section and the reference is finally
10
determined under paragraph (a) above;”,
(g)
in sub-paragraph (vi), omit “(disregarding the fact that the notice
was given)”,
(h)
after sub-paragraph (vi) insert—
“(via)
the Secretary of State has made no finding at
15
all under section 146A(2) and the reference is
finally determined under paragraph (a)
above;”,
(i)
omit the “or” after sub-paragraph (vii),
(j)
after sub-paragraph (vii) insert—
20
“(viia)
the Secretary of State has made an adverse
public interest finding under section 146A(2)
but has decided under section 147A(2) neither
to accept an undertaking under section 159
nor to make an order under section 161;”, and
25
(k)
after sub-paragraph (viii) insert “; or—
“(ix)
the Secretary of State has made an adverse
public interest finding under section 146A(2)
and has accepted an undertaking under
section 159 or made an order under section
30
161.”
      (4)
In subsection (4)(c), after “(b)(viii)” insert “or (ix)”.
      (5)
In subsection (5), for “or (vi)” substitute “, (vi) or (via)”.
      (6)
In subsection (6), after “(b)(viii)” insert “and (ix)”.
33    (1)
Section 184 (index of defined expressions in Part 4) is amended as follows.
35
      (2)
After the entry in the table for “Adverse effect on competition” insert—

“Adverse public interest finding
Section 146A(3)”.

      (3)
After the entry in the table for “Final determination of market investigation
reference” insert—

“Full PI reference
Section 140A(12)”.

40
      (4)
After the entry in the table for “Public interest consideration being finalised”