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 5 — Amendments related to Part 3
Part 2 — Transfer of functions under the 2002 Act to the CMA
125

constitution of a group under Schedule 4 to the Enterprise and Regulatory
Reform Act 2013 if the CMA believes that it is or may be the case that—”.
      (3)
In subsection (2)—
(a)
in the words before paragraph (a), for “OFT” substitute “CMA”, and
(b)
in paragraph (a), omit “to the Commission”.
5
      (4)
In subsections (3) and (3A), for “OFT” (in each place where it occurs)
substitute “CMA”.
      (5)
In subsection (7)—
(a)
in paragraph (a), for “the OFT or (as the case may be) the
Commission” substitute “the CMA”, and
10
(b)
in paragraph (b), for “the OFT, the Commission” substitute “the
CMA”.
68
In section 23 (relevant merger situations), in subsection (9), in paragraph (a),
for “Commission” substitute “CMA”.
69
In section 24 (time-limits and prior notice), in subsection (2), for “OFT” (in
15
each place where it occurs) substitute “CMA”.
70
In section 25 (extension of time-limits), in subsections (1) to (6) and (8), for
“OFT” (in each place where it occurs) substitute “CMA”.
71
In section 28 (turnover test), in subsection (5), for “OFT” substitute “CMA”.
72    (1)
Section 33 (duty to make references in relation to anticipated mergers) is
20
amended as follows.
      (2)
In subsection (1), for the words before paragraph (a) substitute “The CMA
shall, subject to subsections (2) and (3), make a reference to its chair for the
constitution of a group under Schedule 4 to the Enterprise and Regulatory
Reform Act 2013 if the CMA believes that it is or may be the case that—”.
25
      (3)
In subsection (2)—
(a)
in the words before paragraph (a), for “OFT” substitute “CMA”,
(b)
in paragraph (a), omit “to the Commission”, and
(c)
in paragraph (b), omit “to the Commission”.
      (4)
In subsections (3) and (3A), for “OFT” (in each place where it occurs)
30
substitute “CMA”.
73    (1)
Section 34A (duty where case referred by the European Commission) is
amended as follows.
      (2)
In subsection (1), for “OFT” substitute “CMA”.
      (3)
In subsection (2)—
35
(a)
in the words before paragraph (a), for “OFT” substitute “CMA”, and
(b)
in paragraph (a), omit “to the Commission”.
      (4)
In subsection (3), for “OFT” (in each place where it occurs) substitute
“CMA”.
      (5)
In the heading, for “OFT” substitute “CMA”.
40
74
Before section 35 (but after the italic cross-heading immediately preceding

Enterprise and Regulatory Reform Bill
Schedule 5 — Amendments related to Part 3
Part 2 — Transfer of functions under the 2002 Act to the CMA
126

it) insert—
“34C
Functions to be exercised by CMA groups
(1)
Where a reference is made to the chair of the CMA under section 22
or 33 for the constitution of a group under Schedule 4 to the
Enterprise and Regulatory Reform Act 2013, the functions of the
5
CMA under or by virtue of the following provisions of this Part in
relation to the matter concerned are to be carried out on behalf of the
CMA by the group so constituted—
(a)
sections 35 to 41B, except for sections 35(6) and (7), 36(5) and
(6) and 37(6);
10
(b)
where a reference is treated by virtue of section 37(2) as
having been made under section 22, section 23(9)(a);
(c)
section 76, as it applies in relation to orders under section 83,
and sections 77, 78 and 80 to 84;
(d)
section 87, so far as relating to an enforcement order made on
15
behalf of the CMA by the group;
(e)
sections 92(4), 94 and 94A, so far as relating to an enforcement
undertaking or enforcement order made on behalf of the
CMA by the group;
(f)
section 104, so far as relating to a decision mentioned in
20
paragraph (a)(iii) of the definition of relevant decision in
subsection (6) of that section;
(g)
section 107, so far as relating to anything done on behalf of
the CMA by the group;
(h)
section 109, where the permitted purpose in question relates
25
to a function that (by virtue of this section) is being or is to be
carried out on behalf of the CMA by the group;
(i)
sections 110 to 115, so far as relating to a notice given under
section 109 on behalf of the CMA by the group;
(j)
section 120(5)(b), so far as relating to a decision of the group;
30
(k)
Schedule 10, so far as relating to an enforcement undertaking
or enforcement order which the group is considering
accepting or making, or which the group has accepted or
made, on behalf of the CMA.
(2)
The functions of the CMA under section 95(4) in relation to the
35
matter concerned may be carried out on behalf of the CMA by the
group.
(3)
Nothing in subsection (1) prevents the CMA Board from exercising a
function of the CMA under or by virtue of the following provisions
of this Part where the group constituted as mentioned in subsection
40
(1) has ceased to exist—
(a)
section 76 and Schedule 10, so far as relating to the making of
an order under section 76 in relation to an order under section
83;
(b)
section 83 and Schedule 10, so far as relating to the making of
45
an order under section 83;
(c)
sections 76 (as it applies in relation to an order under section
83), 80 to 84 and Schedule 10, so far as relating to the
variation, supersession or release of enforcement

Enterprise and Regulatory Reform Bill
Schedule 5 — Amendments related to Part 3
Part 2 — Transfer of functions under the 2002 Act to the CMA
127

undertakings or the variation or revocation of enforcement
orders;
(d)
section 87;
(e)
sections 92(4) and 94.”
75
In section 35 (questions to be decided in relation to completed mergers), in
5
subsections (1) and (3) to (7), for “Commission” (in each place where it
occurs) substitute “CMA”.
76
In section 36 (questions to be decided in relation to anticipated mergers), in
subsections (1) to (6), for “Commission” (in each place where it occurs)
substitute “CMA”.
10
77    (1)
Section 37 (cancellation and variation of references under section 22 or 33) is
amended as follows.
      (2)
In subsections (1) to (4), for “Commission” (in each place where it occurs)
substitute “CMA”.
      (3)
In subsection (6), for “OFT” substitute “CMA”.
15
      (4)
Omit subsections (7) and (8).
      (5)
In subsection (9)—
(a)
for “OFT” substitute “CMA”, and
(b)
for “Commission” substitute “CMA”.
78    (1)
Section 38 (investigations and reports on references under section 22 or 33)
20
is amended as follows.
      (2)
In subsections (1) to (3), for “Commission” (in each place where it occurs)
substitute “CMA”.
      (3)
Omit subsection (4).
79
In section 39 (time-limits for investigations and reports), in subsections (1),
25
(3), (4) and (8), for “Commission” (in each place where it occurs) substitute
“CMA”.
80
In section 40 (section 39: supplementary), in subsections (10), (11) and (13),
for “Commission” (in each place where it occurs) substitute “CMA”.
81
In section 41 (duty to remedy effects of completed or anticipated mergers),
30
in subsections (1) to (5), for “Commission” (in each place where it occurs)
substitute “CMA”.
82    (1)
Section 42 (intervention by Secretary of State in certain public interest cases)
is amended as follows.
      (2)
In subsection (2), for “OFT” substitute “CMA”.
35
      (3)
In subsection (6)—
(a)
for “OFT” (in each place where it occurs) substitute “CMA”, and
(b)
for “Commission” substitute “CMA”.
83    (1)
Section 43 (intervention notices under section 42) is amended as follows.
      (2)
In subsection (4)—
40
(a)
in paragraph (a), for “OFT” substitute “CMA”, and
(b)
for “Commission” (in each place where it occurs) substitute “CMA”.

Enterprise and Regulatory Reform Bill
Schedule 5 — Amendments related to Part 3
Part 2 — Transfer of functions under the 2002 Act to the CMA
128

84    (1)
Section 44 (investigation and report) is amended as follows.
      (2)
In subsections (2) and (3), for “OFT” (in each place where it occurs) substitute
“CMA”.
      (3)
In subsection (4) —
(a)
in the words before paragraph (a), for “OFT” substitute “CMA”, and
5
(b)
in paragraph (c), omit “to the Commission”.
      (4)
In subsections (5), (5A) and (7), for “OFT” (in each place where it occurs)
substitute “CMA”.
      (5)
In the heading, for “OFT” substitute “CMA”.
85    (1)
Section 45 (power of Secretary of State to refer matter) is amended as
10
follows.
      (2)
In subsection (1), in paragraph (b), for “OFT” substitute “CMA”.
      (3)
In subsections (2) to (5), for “to the Commission” (in each place where it
occurs) substitute “to the chair of the CMA for the constitution of a group
under Schedule 4 to the Enterprise and Regulatory Reform Act 2013”.
15
      (4)
In the heading, for “Commission” substitute “CMA”.
86
In section 46 (references under section 46: supplementary), in subsection (2),
for “OFT” substitute “CMA”.
87    (1)
Section 46A (cases referred by European Commission where intervention
notice is in force) is amended as follows.
20
      (2)
In subsection (1), for “OFT” substitute “CMA”.
      (3)
In subsection (2), in paragraph (a), omit “to the Commission”.
88
Before section 47 (but after the italic cross-heading immediately preceding
it) insert—
“46D
Functions to be exercised by CMA groups
25
Where a reference is made to the chair of the CMA under section 45
for the constitution of a group under Schedule 4 to the Enterprise and
Regulatory Reform Act 2013, the functions of the CMA under or by
virtue of the following provisions of this Part in relation to the matter
concerned are to be carried out on behalf of the CMA by the group
30
so constituted—
(a)
sections 47 to 53;
(b)
where a reference is treated by virtue of section 49(1) as
having been made under section 45(2) or (3), section 23(9)(ab)
(as it has effect by virtue of section 42(6));
35
(c)
sections 104, so far as relating to any decision mentioned in
paragraph (a)(iii) of the definition of relevant decision in
subsection (6) of that section, and 104A;
(d)
section 107, so far as relating to anything done on behalf of
the CMA by the group;
40
(e)
section 109, where the permitted purpose relates to a function
that (by virtue of this section) is being or is to be carried out
on behalf of the CMA by the group;

Enterprise and Regulatory Reform Bill
Schedule 5 — Amendments related to Part 3
Part 2 — Transfer of functions under the 2002 Act to the CMA
129

(f)
sections 110 to 115, so far as relating to a notice given under
section 109 on behalf of the CMA by the group;
(g)
section 118(4);
(h)
section 120(5)(b), so far as relating to a decision of the group.”
89
In section 47 (questions to be decided on references under section 45), in
5
subsections (1) to (11), for “Commission” (in each place where it occurs)
substitute “CMA”.
90
In section 48 (cases where references on certain questions need not be
decided), in subsections (1) to (3) for “Commission” (in each place where it
occurs), substitute “CMA”.
10
91
In section 49 (variation of references under section 45), in subsections (1) to
(4) and (7) to (9), for “Commission” (in each place where it occurs) substitute
“CMA”.
92
In section 50 (investigations and reports on references under section 45), in
subsections (1) to (3), for “Commission” (in each place where it occurs)
15
substitute “CMA”.
93    (1)
Section 51 (time-limits for investigations and reports) is amended as follows.
      (2)
In subsections (1) to (4) and (8), for “Commission” (in each place where it
occurs) substitute “CMA”.
      (3)
In the heading, for “Commission” substitute “CMA”.
20
94
Section 52 (section 51: supplementary), in subsections (10), (11) and (13), for
“Commission” (in each place where it occurs) substitute “CMA”.
95    (1)
Section 53 (restrictions on action where public interest considerations not
finalised) is amended as follows.
      (2)
In subsection (1), for “Commission” substitute “CMA”.
25
      (3)
In subsection (2)—
(a)
omit “to the Commission”, and
(b)
for “Commission” substitute “CMA”.
      (4)
In subsections (3) to (5), for “Commission” (in each place where it occurs)
substitute “CMA”.
30
96    (1)
Section 54 (decision of Secretary of State in public interest cases) is amended
as follows.
      (2)
In subsection (1), for “Commission” substitute “CMA”.
      (3)
In subsection (3), omit “to the Commission” (in each place where it occurs).
      (4)
In subsections (5) and (6), for “Commission” (in each place where it occurs)
35
substitute “CMA”.
      (5)
In subsection (7)—
(a)
omit “to the Commission” (in each place where it occurs),
(b)
for “of the Commission” (in each place where it occurs) substitute “of
the CMA”, and
40
(c)
in paragraph (b)(ii), for “OFT” substitute “CMA”.

Enterprise and Regulatory Reform Bill
Schedule 5 — Amendments related to Part 3
Part 2 — Transfer of functions under the 2002 Act to the CMA
130

97
In section 55 (enforcement action by Secretary of State), in subsection (3), for
“Commission” substitute “CMA”.
98    (1)
Section 56 (competition cases where intervention on public interest grounds
ceases) is amended as follows.
      (2)
In subsections (1) and (2), for “OFT” (in each place where it occurs) substitute
5
“CMA”.
      (3)
In subsection (3)—
(a)
for “Commission” (in each place where it occurs) substitute “CMA”,
(b)
for “the report of the OFT” substitute “its report”, and
(c)
omit “to it by the OFT”.
10
      (4)
In subsection (4), for “Commission” (in each place where it occurs) substitute
“CMA”.
      (5)
In subsection (6)—
(a)
for “Commission” substitute “CMA”, and
(b)
omit “to it”.
15
      (6)
In subsection (7), for “Commission” (in each place where it occurs) substitute
“CMA”.
      (7)
In subsection (8)—
(a)
for “Commission” substitute “CMA”,
(b)
after “(6)” insert “—
20
(a)
”,
(c)
omit “to the Commission by the OFT”, and
(d)
at the end insert “; and
(b)
for the purposes of section 34C, the group constituted
in consequence of the reference under section 45 is to
25
be treated as if it were constituted in consequence of a
reference under section 22 or (as the case may be) 33.”
99    (1)
Section 57 (duties of authorities to inform Secretary of State) is amended as
follows.
      (2)
In subsection (1), for “OFT” substitute “CMA”.
30
      (3)
In subsection (2)—
(a)
for “OFT, OFCOM and the Commission” substitute “CMA and
OFCOM”, and
(b)
for “OFT, OFCOM or (as the case may be) the Commission”
substitute “CMA or (as the case may be) OFCOM”.
35
      (4)
In the heading, for “OFT and Commission” substitute “CMA and OFCOM”.
100
In section 58 (specified considerations), in subsection (4)(b) for “OFT,
OFCOM, the Commission” substitute “CMA, OFCOM”.
101   (1)
Section 59 (intervention by Secretary of State in special public interest cases)
is amended as follows.
40
      (2)
In subsection (2), for “OFT” substitute “CMA”.
      (3)
In subsection (6)—
(a)
for “OFT” (in each place where it occurs) substitute “CMA”, and

Enterprise and Regulatory Reform Bill
Schedule 5 — Amendments related to Part 3
Part 2 — Transfer of functions under the 2002 Act to the CMA
131

(b)
for “Commission” substitute “CMA”.
102   (1)
Section 60 (special intervention notices under section 59) is amended as
follows.
      (2)
In subsection (4)—
(a)
in paragraph (a), for “OFT” substitute “CMA”, and
5
(b)
for “Commission” (in each place where it occurs) substitute “CMA”.
103   (1)
In section 61 (initial investigation and report) is amended as follows.
      (2)
In subsections (2) to (4A) and (6), for “OFT” (in each place where it occurs)
substitute “CMA”.
      (3)
In the heading, for “OFT” substitute “CMA”.
10
104   (1)
Section 62 (power of Secretary of State to refer matter) is amended as
follows.
      (2)
In subsection (1), in paragraph (b), for “OFT” substitute “CMA”.
      (3)
In subsections (2) and (3), for “to the Commission” (in each place where it
occurs), substitute “to the chair of the CMA for the constitution of a group
15
under Schedule 4 to the Enterprise and Regulatory Reform Act 2013”.
      (4)
In subsection (5), for “OFT” substitute “CMA”.
105
Before section 63 insert—
“62A
Functions to be exercised by CMA groups
Where a reference is made to the chair of the CMA under section 62
20
for the constitution of a group under Schedule 4 to the Enterprise and
Regulatory Reform Act 2013, the functions of the CMA under or by
virtue of the following provisions of this Part in relation to the matter
concerned are to be carried out on behalf of the CMA by the group
so constituted—
25
(a)
sections 63 to 65;
(b)
where a reference is treated by virtue of section 64(2) as
having been made under section 62(2), section 23(9)(ab) (as it
has effect by virtue of section 59(6));
(c)
sections 104, so far as relating to any decision mentioned in
30
paragraph (a)(iii) of the definition of relevant decision in
subsection (6) of that section, and 104A;
(d)
section 107, so far as relating to anything done on behalf of
the CMA by the group;
(e)
section 109, where the permitted purpose relates to a function
35
that (by virtue of this section) is being or is to be carried out
on behalf of the CMA by the group;
(f)
sections 110 to 115, so far as relating to a notice given under
section 109 on behalf of the CMA by the group;
(g)
section 118(4);
40
(h)
section 120(5)(b), so far as relating to a decision of the group.”
106
In section 63 (questions to be decided on references under section 62), in
subsections (1) to (4), for “Commission” (in each place where it occurs)
substitute “CMA”.