Session 2012 - 13
Internet Publications
Other Bills before Parliament

Enterprise and Regulatory Reform Bill


Enterprise and Regulatory Reform Bill
Schedule 4 — The Competition and Markets Authority
Part 3 — The CMA panel

111

 

      (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.

Replacement of a member of a CMA group

5

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.

Continuity on removal or replacement

10

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)   

any decision made or direction given by the person while a member

15

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

selected under paragraph 43;

20

(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

member who is not a member of the group may attend its meetings or

25

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

included in a report made by the group.

30

      (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)  

While a CMA group is being constituted, the chair may take such steps as he

35

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.

 
 

Enterprise and Regulatory Reform Bill
Schedule 4 — The Competition and Markets Authority
Part 3 — The CMA panel

112

 

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

reference;

5

(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).

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

10

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)   

a member of the CMA panel designated by the Secretary of State

15

(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)  

It may be given—

20

(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)   

by reference to specific matters or specific CMA groups, or by

25

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)   

the chair’s functions by or under any other enactment in respect of

30

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)   

Schedule 22 to the Energy Act 2004;

35

(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)  

Nothing in sub-paragraph (1) prevents—

40

(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.

 
 

Enterprise and Regulatory Reform Bill
Schedule 4 — The Competition and Markets Authority
Part 3 — The CMA panel

113

 

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)  

The CMA Board must make rules of procedure for merger reference groups,

5

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

such persons as it considers appropriate.

10

      (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

or under any enactment, a CMA group of a type referred to in sub-

15

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

Enterprise Act 2002;

20

(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

connection with a reference under—

25

(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)   

article 15 of the Electricity (Northern Ireland) Order 1992 (SI

30

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)   

section 12 of the Transport Act 2000;

35

(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

CMA Board under paragraph 51(1), and in determining its own procedure

40

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

appropriate.

45

 
 

Enterprise and Regulatory Reform Bill
Schedule 4 — The Competition and Markets Authority
Part 3 — The CMA panel

114

 

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)  

They may in particular make provision—

5

(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

group in connection with a merger investigation, market

10

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,

in particular, permit or require a relevant group to disregard documents or

15

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)  

Rules made under paragraph 51 may make provision as to the quorum of

20

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

described in the rules are allowed—

25

(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)   

as to the extent (if any) to which sittings of a relevant group are to be

30

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)  

Rules made under paragraph 51 may make provision for—

35

(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

provision as to the involvement of any public interest expert in the market

40

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

reference group in connection with a reference under section 131, 132

45

or 140A of the Enterprise Act 2002;

 
 

Enterprise and Regulatory Reform Bill
Schedule 4 — The Competition and Markets Authority
Part 3 — The CMA panel

115

 

“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;

“public interest expert” means a person appointed under section 141B

5

of the Enterprise Act 2002 in relation to a reference under section

140A(6) of that Act;

“relevant group” means a market reference group, a merger reference

group, or a special reference group;

“special investigation” means an investigation carried out by a special

10

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,

and to any provision made by or under any enactment, a CMA group that is

15

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

interested in a matter under consideration are allowed—

20

(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)   

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

25

      (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

a decision made by a CMA group which is that of at least two-thirds of the

30

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

decision, it is to be treated as a decision under that section that there is not

35

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

created, it is to be treated as a decision under section 47 that no such

40

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

Kingdom for goods and services, it is to be treated as a decision

45

under section 47 that the creation of that situation has not resulted,

 
 

Enterprise and Regulatory Reform Bill
Schedule 4 — The Competition and Markets Authority
Part 3 — The CMA panel

116

 

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

of a relevant merger situation, it is to be treated as a decision under

5

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

lessening of competition within any market or markets in the United

10

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

qualifying majority decision—

15

(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

contemplation which, if carried into effect, will result in the creation

20

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

Part 3 of the Enterprise Act 2002.

25

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

combination of features of a relevant market prevents, restricts or

30

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

not prevent, restrict or distort such competition;

35

(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

or distorts competition in connection with the supply or acquisition

40

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

such competition.

45

      (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

reference, is to be treated as mentioned in sub-paragraph (2)(a) or (as

50

the case may be) (b), and

 
 

Enterprise and Regulatory Reform Bill
Schedule 4 — The Competition and Markets Authority
Part 4 — Interpretation and transitional and transitory provision

117

 

(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

as mentioned in sub-paragraph (2)(a), and which is that a feature or

5

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)   

in relation to a cross-market reference, a decision that is not to be

10

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,

restricts or distorts competition in connection with the supply or

15

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)

that the feature or combination of features in question operates or may be

20

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

Part 4 of the Enterprise Act 2002.

25

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

Interpretation and transitional and transitory provision

30

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

meaning of the Interpretation Act 1978;

35

(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 in an instrument made under,

Northern Ireland legislation within the meaning of the Interpretation

40

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 25(3) comes into force.

45

 
 

 
previous section contents continue
 

© Parliamentary copyright
Revised 19 March 2013