PART 3 continued CHAPTER 1 continued
(2) For the purposes of this Part there is an anti-competitive outcome if—
(a) a relevant merger situation has been created and the creation of that 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 or services; or
(b) arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation and the creation of that situation may be expected to result in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services.
(3) The Commission shall, if it has decided on a reference under section 22 that there is an anti-competitive outcome (within the meaning given by subsection (2)(a)), decide the following additional questions—
(a) whether action should be taken by it under section 41(2) for the purpose of remedying, mitigating or preventing the substantial lessening of competition concerned or any adverse effect which has resulted from, or may be expected to result from, the substantial lessening of competition;
(b) whether it should recommend the taking of action by others for the purpose of remedying, mitigating or preventing the substantial lessening of competition concerned or any adverse effect which has resulted from, or may be expected to result from, the substantial lessening of competition; and
(c) in either case, if action should be taken, what action should be taken and what is to be remedied, mitigated or prevented.
(4) In deciding the questions mentioned in subsection (3) the Commission shall, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to the substantial lessening of competition and any adverse effects resulting from it.
(5) In deciding the questions mentioned in subsection (3) the Commission may, in particular, have regard to the effect of any action on any relevant customer benefits in relation to the creation of the relevant merger situation concerned.
(6) In relation to the question whether a relevant merger situation has been created, a reference under section 22 may be framed so as to require the Commission to exclude from consideration—
(a) subsection (1) of section 23;
(b) subsection (2) of that section; or
(c) one of those subsections if the Commission finds that the other is satisfied.
(7) In relation to the question whether any such result as is mentioned in section 23(2)(b) has arisen, a reference under section 22 may be framed so as to require the Commission to confine its investigation to the supply of goods or services in a part of the United Kingdom specified in the reference.
(1) Subject to subsections (5) and (6) and section 127(3), the Commission shall, on a reference under section 33, decide the following questions—
(a) whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation; and
(b) if so, whether the creation of that situation may be expected to result in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services.
(2) The Commission shall, if it has decided on a reference under section 33 that there is an anti-competitive outcome (within the meaning given by section 35(2)(b)), decide the following additional questions—
(a) whether action should be taken by it under section 41(2) for the purpose of remedying, mitigating or preventing the substantial lessening of competition concerned or any adverse effect which may be expected to result from the substantial lessening of competition;
(b) whether it should recommend the taking of action by others for the purpose of remedying, mitigating or preventing the substantial lessening of competition concerned or any adverse effect which may be expected to result from the substantial lessening of competition; and
(c) in either case, if action should be taken, what action should be taken and what is to be remedied, mitigated or prevented.
(3) In deciding the questions mentioned in subsection (2) the Commission shall, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to the substantial lessening of competition and any adverse effects resulting from it.
(4) In deciding the questions mentioned in subsection (2) the Commission may, in particular, have regard to the effect of any action on any relevant customer benefits in relation to the creation of the relevant merger situation concerned.
(5) In relation to the question whether a relevant merger situation will be created, a reference under section 33 may be framed so as to require the Commission to exclude from consideration—
(a) subsection (1) of section 23;
(b) subsection (2) of that section; or
(c) one of those subsections if the Commission finds that the other is satisfied.
(6) In relation to the question whether any such result as is mentioned in section 23(2)(b) will arise, a reference under section 33 may be framed so as to require the Commission to confine its investigation to the supply of goods or services in a part of the United Kingdom specified in the reference.
(1) The Commission shall cancel a reference under section 33 if it considers that the proposal to make arrangements of the kind mentioned in the reference has been abandoned.
(2) The Commission may, if it considers that doing so is justified by the facts (including events occurring on or after the making of the reference concerned), treat a reference made under section 22 or 33 as if it had been made under section 33 or (as the case may be) 22; and, in such cases, references in this Part to references under those sections shall, so far as may be necessary, be construed accordingly.
(3) Where, by virtue of subsection (2), the Commission treats a reference made under section 22 or 33 as if it had been made under section 33 or (as the case may be) 22, sections 77 to 81 shall, in particular, apply as if the reference had been made under section 33 or (as the case may be) 22 instead of under section 22 or 33.
(4) Subsection (5) applies in relation to any undertaking accepted under section 80, or any order made under section 81, which is in force immediately before the Commission, by virtue of subsection (2), treats a reference made under section 22 or 33 as if it had been made under section 33 or (as the case may be) 22.
(5) The undertaking or order shall, so far as applicable, continue in force as if—
(a) in the case of an undertaking or order which relates to a reference made under section 22, accepted or made in relation to a reference made under section 33; and
(b) in the case of an undertaking or order which relates to a reference made under section 33, accepted or made in relation to a reference made under section 22;
and the undertaking or order concerned may be varied, superseded, released or revoked accordingly.
(6) The OFT may at any time vary a reference under section 22 or 33.
(7) The OFT shall consult the Commission before varying any such reference.
(8) Subsection (7) shall not apply if the Commission has requested the variation concerned.
(9) No variation by the OFT under this section shall be capable of altering the period permitted by section 39 within which the report of the Commission under section 38 is to be prepared and published.
(1) The Commission shall prepare and publish a report on a reference under section 22 or 33 within the period permitted by section 39.
(2) The report shall, in particular, contain—
(a) the decisions of the Commission on the questions which it is required to answer by virtue of section 35 or (as the case may be) 36;
(b) its reasons for its decisions; and
(c) such information as the Commission considers appropriate for facilitating a proper understanding of those questions and of its reasons for its decisions.
(3) The Commission shall carry out such investigations as it considers appropriate for the purposes of preparing a report under this section.
(4) The Commission shall, at the same time as a report prepared under this section is published, give it to the OFT.
(1) The Commission shall prepare and publish its report under section 38 within the period of 24 weeks beginning with the date of the reference concerned.
(2) Where article 9(6) of the European Merger Regulations applies in relation to the reference under section 22 or 33, the Commission shall prepare and publish its report under section 38—
(a) within the period of 24 weeks beginning with the date of the reference; or
(b) if it is a shorter period, within such period as is necessary to ensure compliance with that article.
(3) The Commission may extend, by no more than 8 weeks, the period within which a report under section 38 is to be prepared and published if it considers that there are special reasons why the report cannot be prepared and published within that period.
(4) The Commission may extend the period within which a report under section 38 is to be prepared and published if it considers that a relevant person has failed (whether with or without a reasonable excuse) to comply with any requirement of a notice under section 109.
(5) In subsection (4) “relevant person” means—
(a) any person carrying on any of the enterprises concerned;
(b) any person who (whether alone or as a member of a group) owns or has control of any such person; or
(c) any officer, employee or agent of any person mentioned in paragraph (a) or (b).
(6) For the purposes of subsection (5) a person or group of persons able, directly or indirectly, to control or materially to influence the policy of a body of persons corporate or unincorporate, but without having a controlling interest in that body of persons, may be treated as having control of it.
(7) An extension under subsection (3) or (4) shall come into force when published under section 107.
(8) An extension under subsection (4) shall continue in force until—
(a) the person concerned provides the information or documents to the satisfaction of the Commission or (as the case may be) appears as a witness in accordance with the requirements of the Commission; or
(b) the Commission publishes its decision to cancel the extension.
(9) References in this Part to the date of a reference shall be construed as references to the date specified in the reference as the date on which it is made.
(10) This section is subject to section 40.
(1) No extension is possible under subsection (3) or (4) of section 39 where the period within which the report is to be prepared and published is determined by virtue of subsection (2)(b) of that section.
(2) Where the period within which the report is to be prepared and published is determined by virtue of subsection (2)(a) of section 39, no extension is possible under subsection (3) or (4) of that section which extends that period beyond such period as is necessary to ensure compliance with article 9(6) of the European Merger Regulations.
(3) A period extended under subsection (3) of section 39 may also be extended under subsection (4) of that section and a period extended under subsection (4) of that section may also be extended under subsection (3) of that section.
(4) No more than one extension is possible under section 39(3).
(5) Where a period within which a report under section 38 is to be prepared and published is extended or further extended under section 39(3) or (4), the period as extended or (as the case may be) further extended shall, subject to subsections (6) and (7), be calculated by taking the period being extended and adding to it the period of the extension (whether or not those periods overlap in time).
(6) Subsection (7) applies where—
(a) the period within which the report under section 38 is to be prepared and published is further extended;
(b) the further extension and at least one previous extension is made under section 39(4); and
(c) the same days or fractions of days are included in or comprise the further extension and are included in or comprise at least one such previous extension.
(7) In calculating the period of the further extension, any days or fractions of days of the kind mentioned in subsection (6)(c) shall be disregarded.
(8) The Secretary of State may by order amend section 39 so as to alter any one or more of the following periods—
(a) the period of 24 weeks mentioned in subsection (1) of that section or any period for the time being mentioned in that subsection in substitution for that period;
(b) the period of 24 weeks mentioned in subsection (2)(a) of that section or any period for the time being mentioned in that subsection in substitution for that period;
(c) the period of 8 weeks mentioned in subsection (3) of that section or any period for the time being mentioned in that subsection in substitution for that period.
(9) No alteration shall be made by virtue of subsection (8) which results in the period for the time being mentioned in subsection (1) or (2)(a) of section 39 exceeding 24 weeks or the period for the time being mentioned in subsection (3) of that section exceeding 8 weeks.
(10) An order under subsection (8) shall not affect any period of time within which the Commission is under a duty to prepare and publish its report under section 38 in relation to a reference under section 22 or 33 if the Commission is already under that duty in relation to that reference when the order is made.
(11) Before making an order under subsection (8) the Secretary of State shall consult the Commission and such other persons as he considers appropriate.
(12) The Secretary of State may make regulations for the purposes of section 39(8).
(13) The regulations may, in particular—
(a) provide for the time at which information or documents are to be treated as provided (including the time at which they are to be treated as provided to the satisfaction of the Commission for the purposes of section 39(8));
(b) provide for the time at which a person is to be treated as appearing as a witness (including the time at which he is to be treated as appearing as a witness in accordance with the requirements of the Commission for the purposes of section 39(8));
(c) provide for the persons carrying on the enterprises which have or may have ceased to be, or may cease to be, distinct enterprises to be informed, in circumstances in which section 39(8) applies, of the fact that—
(i) the Commission is satisfied as to the provision of the information or documents required by it; or
(ii) the person concerned has appeared as a witness in accordance with the requirements of the Commission;
(d) provide for the persons carrying on the enterprises which have or may have ceased to be, or may cease to be, distinct enterprises to be informed, in circumstances in which section 39(8) applies, of the time at which the Commission is to be treated as satisfied as mentioned in paragraph (c)(i) above or the person concerned is to be treated as having appeared as mentioned in paragraph (c)(ii) above.
(1) Subsection (2) applies where a report of the Commission has been prepared and published under section 38 within the period permitted by section 39 and contains the decision that there is an anti-competitive outcome.
(2) The Commission shall take such action under section 82 or 84 as it considers to be reasonable and practicable—
(a) to remedy, mitigate or prevent the substantial lessening of competition concerned; and
(b) to remedy, mitigate or prevent any adverse effects which have resulted from, or may be expected to result from, the substantial lessening of competition.
(3) The decision of the Commission under subsection (2) shall be consistent with its decisions as included in its report by virtue of section 35(3) or (as the case may be) 36(2) unless there has been a material change of circumstances since the preparation of the report or the Commission otherwise has a special reason for deciding differently.
(4) In making a decision under subsection (2), the Commission shall, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to the substantial lessening of competition and any adverse effects resulting from it.
(5) In making a decision under subsection (2), the Commission may, in particular, have regard to the effect of any action on any relevant customer benefits in relation to the creation of the relevant merger situation concerned.
(1) Subsection (2) applies where—
(a) the Secretary of State has reasonable grounds for suspecting that it is or may be the case that a relevant merger situation has been created or that arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation;
(b) no reference under section 22 or 33 has been made in relation to the relevant merger situation concerned;
(c) no decision has been made not to make such a reference (other than a decision made by virtue of subsection (2)(b) of section 33 or a decision to accept undertakings under section 73 instead of making such a reference); and
(d) no reference is prevented from being made under section 22 or 33 by virtue of—
(i) section 22(3)(a) or (e) or (as the case may be) 33(3)(a) or (e); or
(ii) Community law or anything done under or in accordance with it.
(2) The Secretary of State may give a notice to the OFT (in this Part “an intervention notice”) if he believes that it is or may be the case that one or more than one public interest consideration is relevant to a consideration of the relevant merger situation concerned.
(3) For the purposes of this Part a public interest consideration is a consideration which, at the time of the giving of the intervention notice concerned, is specified in section 58 or is not so specified but, in the opinion of the Secretary of State, ought to be so specified.
(4) No more than one intervention notice shall be given under subsection (2) in relation to the same relevant merger situation.
(5) For the purposes of deciding whether a relevant merger situation has been created or whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation, sections 23 to 32 (read together with section 34) shall apply for the purposes of this Chapter as they do for the purposes of Chapter 1 but subject to subsection (6).
(6) In their application by virtue of subsection (5) sections 23 to 32 shall have effect as if—
(a) for paragraph (a) of section 23(9) there were substituted—
“(a) in relation to the giving of an intervention notice, the time when the notice is given;
(aa) in relation to the making of a report by the OFT under section 44, the time of the making of the report;
(ab) in the case of a reference which is treated as having been made under section 45(2) or (3) by virtue of section 49(1), such time as the Commission may determine; and”;
(b) the references to the OFT in sections 25(1) to (3), (6) and (8) and 31 included references to the Secretary of State;
(c) the references to the OFT in section 25(4) and (5) were references to the Secretary of State;
(d) the reference in section 25(4) to section 73 were a reference to paragraph 3 of Schedule 7;
(e) after section 25(5) there were inserted—
“(5A) The Secretary of State may by notice to the persons carrying on the enterprises which have or may have ceased to be distinct enterprises extend the four month period mentioned in section 24(1)(a) or (2)(b) if, by virtue of section 46(5) or paragraph 3(6) of Schedule 7, he decides to delay a decision as to whether to make a reference under section 45.
(5B) An extension under subsection (5A) shall be for the period of the delay.”;
(f) in section 25(10)(b) after the word “(4)” there were inserted “, (5A)”;
(g) the reference in section 25(12) to one extension were a reference to one extension by the OFT and one extension by the Secretary of State;
(h) the powers to extend time-limits under section 25 as applied by subsection (5) above, and the power to request information under section 31(1) as so applied, were not exercisable by the OFT or the Secretary of State before the giving of an intervention notice but the existing time-limits in relation to possible references under section 22 or 33 were applicable for the purposes of the giving of that notice;
(i) the existing time-limits in relation to possible references under section 22 or 33 (except for extensions under section 25(4)) remained applicable on and after the giving of an intervention notice as if any extensions were made under section 25 as applied by subsection (5) above but subject to further alteration by the OFT or the Secretary of State under section 25 as so applied;
(j) in subsection (1) of section 31 for the words “section 22” there were substituted “section 45(2) or (3)” and, in the application of that subsection to the OFT, for the word “deciding” there were substituted “enabling the Secretary of State to decide”;
(k) in the case of the giving of intervention notices, the references in sections 23 to 32 to the making of a reference or a reference were, so far as necessary, references to the giving of an intervention notice or an intervention notice; and
(l) the references to the OFT in section 32(2)(a) to (c) and (3) were construed in accordance with the above modifications.
(7) Where the Secretary of State has given an intervention notice mentioning a public interest consideration which, at that time, is not finalised, he shall, as soon as practicable, take such action as is within his power to ensure that it is finalised.
(8) For the purposes of this Part a public interest consideration is finalised if—
(a) it is specified in section 58 otherwise than by virtue of an order under subsection (3) of that section; or
(b) it is specified in that section by virtue of an order under subsection (3) of that section and the order providing for it to be so specified has been laid before, and approved by, Parliament in accordance with subsection (7) of section 124 and within the period mentioned in that subsection.
(1) An intervention notice shall state—
(a) the relevant merger situation concerned;
(b) the public interest consideration or considerations which are, or may be, relevant to a consideration of the relevant merger situation concerned; and
(c) where any public interest consideration concerned is not finalised, the proposed timetable for finalising it.
(2) Where the Secretary of State believes that it is or may be the case that two or more public interest considerations are relevant to a consideration of the relevant merger situation concerned, he may decide not to mention in the intervention notice such of those considerations as he considers appropriate.
(3) An intervention notice shall come into force when it is given and shall cease to be in force when the matter to which it relates is finally determined under this Chapter.
(4) For the purposes of this Part, a matter to which an intervention notice relates is finally determined under this Chapter if—
(a) the time within which the OFT is to report to the Secretary of State under section 44 has expired and no such report has been made;
(b) the Secretary of State decides to accept an undertaking or group of undertakings under paragraph 3 of Schedule 7 instead of making a reference under section 45;
(c) the Secretary of State otherwise decides not to make a reference under that section;
(d) the Commission cancels such a reference under section 48(1) or 53(1);
(e) the time within which the Commission is to prepare a report under section 50 and give it to the Secretary of State has expired and no such report has been prepared and given to the Secretary of State;
(f) the time within which the Secretary of State is to make and publish a decision under section 54(2) has expired and no such decision has been made and published;
(g) the Secretary of State decides under section 54(2) to make no finding at all in the matter;
(h) the Secretary of State otherwise decides under section 54(2) not to make an adverse public interest finding;
(i) the Secretary of State decides under section 54(2) to make an adverse public interest finding but decides neither to accept an undertaking under paragraph 9 of Schedule 7 nor to make an order under paragraph 11 of that Schedule; or
(j) the Secretary of State decides under section 54(2) to make an adverse public interest finding and accepts an undertaking under paragraph 9 of Schedule 7 or makes an order under paragraph 11 of that Schedule.
(5) For the purposes of this Part the time when a matter to which an intervention notice relates is finally determined under this Chapter is—
(a) in a case falling within subsection (4)(a), (e) or (f), the expiry of the time concerned;
(b) in a case falling within subsection (4)(b), the acceptance of the undertaking or group of undertakings concerned;
(c) in a case falling within subsection (4)(c), (d), (g) or (h), the making of the decision concerned;
(d) in a case falling within subsection (4)(i), the making of the decision neither to accept an undertaking under paragraph 9 of Schedule 7 nor to make an order under paragraph 11 of that Schedule; and
(e) in a case falling within subsection (4)(j), the acceptance of the undertaking concerned or (as the case may be) the making of the order concerned.
(1) Subsection (2) applies where the Secretary of State has given an intervention notice in relation to a relevant merger situation.
(2) The OFT shall, within such period as the Secretary of State may require, give a report to the Secretary of State in relation to the case.
(3) The report shall contain—
(a) advice from the OFT on the considerations relevant to the making of a reference under section 22 or 33 which are also relevant to the Secretary of State’s decision as to whether to make a reference under section 45; and
(b) a summary of any representations about the case which have been received by the OFT and which relate to any public interest consideration mentioned in the intervention notice concerned and which is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 45.
(4) The report shall, in particular, include decisions as to whether the OFT believes that it is, or may be, the case that—
(a) a relevant merger situation has been created or arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation;
(b) the creation of that 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 or services;
(c) the market or markets concerned would not be of sufficient importance to justify the making of a reference to the Commission under section 22 or 33;
(d) in the case of arrangements which are in progress or in contemplation, the arrangements are not sufficiently far advanced, or not sufficiently likely to proceed, to justify the making of such a reference;
(e) any relevant customer benefits in relation to the creation of the relevant merger situation concerned outweigh the substantial lessening of competition and any adverse effects of the substantial lessening of competition; or
(f) it would be appropriate to deal with the matter (disregarding any public interest considerations mentioned in the intervention notice concerned) by way of undertakings under paragraph 3 of Schedule 7.
(5) If the OFT believes that it is or may be the case that it would be appropriate to deal with the matter (disregarding any public interest considerations mentioned in the intervention notice concerned) by way of undertakings under paragraph 3 of Schedule 7, the report shall contain descriptions of the undertakings which the OFT believes are, or may be, appropriate.
(6) The report may, in particular, include advice and recommendations on any public interest consideration mentioned in the intervention notice concerned and which is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 45.
(7) The OFT shall carry out such investigations as it considers appropriate for the purposes of producing a report under this section.
(1) Subsections (2) to (5) apply where the Secretary of State—
(a) has given an intervention notice in relation to a relevant merger situation; and
(b) has received a report of the OFT under section 44 in relation to the matter.
(2) The Secretary of State may make a reference to the Commission if he believes that it is or may be the case that—
(a) a relevant merger situation has been created;
(b) the creation of that 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 or services;
(c) one or more than one public interest consideration mentioned in the intervention notice is relevant to a consideration of the relevant merger situation concerned; and
(d) taking account only of the substantial lessening of competition and the relevant public interest consideration or considerations concerned, the creation of that situation operates or may be expected to operate against the public interest.
(3) The Secretary of State may make a reference to the Commission if he believes that it is or may be the case that—
(a) a relevant merger situation has been created;
(b) the creation of that situation has not resulted, and may be expected not to result, in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services;
(c) one or more than one public interest consideration mentioned in the intervention notice is relevant to a consideration of the relevant merger situation concerned; and
(d) taking account only of the relevant public interest consideration or considerations concerned, the creation of that situation operates or may be expected to operate against the public interest.
(4) The Secretary of State may make a reference to the Commission if he believes that it is or may be the case that—
(a) arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation;
(b) the creation of that situation may be expected to result in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services;
(c) one or more than one public interest consideration mentioned in the intervention notice is relevant to a consideration of the relevant merger situation concerned; and
(d) taking account only of the substantial lessening of competition and the relevant public interest consideration or considerations concerned, the creation of the relevant merger situation may be expected to operate against the public interest.