Session 2012 - 13
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Enterprise and Regulatory Reform Bill


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

216

 

(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

expert.”

5

      (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 the report under section 143A(2) or (3).”

9     (1)  

Section 143 (publication etc of reports) is amended as follows.

10

      (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

section 142” substitute “the report”.

15

      (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

reports of CMA”.

20

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)   

The CMA shall publish the report if it contains—

25

(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

which gave rise to it does not operate and may not be

30

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

an adverse effect on competition operates or may be expected

35

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)   

The CMA shall give the report to the Secretary of State if it contains

40

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

 
 

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

217

 

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”.

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

218

 

      (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

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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)   

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.”

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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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Revised 19 March 2013