Table of Contents
Enterprise Act 2002 (c. 40)Introductory TextPart 1 General functions of the CMA (ss. 1-11)Establishment of OFT (ss. 1-4)1. The Office of Fair Trading2. The Director General of Fair Trading3. Annual plan4. Annual and other reportsGeneral functions of CMA (ss. 5-8A)5. Acquisition of information etc.6. Provision of information etc. to the public7. Provision of information and advice to Ministers etc.8. Promoting good consumer practice8A. Exclusion of public consumer advice schemeMiscellaneous (ss. 9-11)9. Repeal of certain powers of direction10. Part 2 of the 1973 Act11. Super-complaints to OFTPart 2 The Competition Appeal Tribunal (ss. 12-21)The Competition Appeal Tribunal (ss. 12-16)12. The Competition Appeal Tribunal13. The Competition Service14. Constitution of Tribunal for particular proceedings and its decisions15. Tribunal rules16. Transfers of certain proceedings to and from TribunalProceedings under Part 1 of 1998 Act (ss. 17-19)17. Third party appeals18. Monetary claims19. Claims on behalf of consumersOther amendments of 1998 Act (ss. 20-21)20. Findings of infringements21. Amendment of 1998 Act relating to the TribunalPart 3 Mergers (ss. 22-130)Chapter 1 Duty to make references (ss. 22-41B)Duty to make references: completed mergers (ss. 22-32)22. Duty to make references in relation to completed mergers23. Relevant merger situations23A. Relevant enterprises24. Time-limits and prior notice25. Extension of time-limits26. Enterprises ceasing to be distinct enterprises27. Time when enterprises cease to be distinct28. Turnover test29. Obtaining control by stages30. Relevant customer benefits31. Information powers in relation to completed mergers32. Supplementary provision for purposes of section 25Duty to make references: anticipated mergers (ss. 33-34)33. Duty to make references in relation to anticipated mergers34. Supplementary provision in relation to anticipated mergersSupplementary provision: time-limits for decisions about references (ss. 34ZA-34ZF)34ZA. Time-limits for decisions about references34ZB. Extension of time-limits34ZC. Sections 34ZA and 34ZB: supplementary34ZD. Fast-track reference requests34ZE. Fast-track reference requests: procedure34ZF. Acceptance by the CMA of fast-track reference requestsCases referred by European Commission under EC Merger Regulation (ss. 34A-34B)34A. Duty of CMA where case referred by the European Commission34B. Power to request information in referred casesDetermination of references (ss. 35-41B)34C. Functions to be exercised by CMA groups35. Questions to be decided in relation to completed mergers36. Questions to be decided in relation to anticipated mergers37. Cancellation and variation of references under section 22 or 3338. Investigations and reports on references under section 22 or 3339. Time-limits for investigations and reports40. Section 39: supplementary41. Duty to remedy effects of completed or anticipated mergers41A. Time-limit for discharging duty under section 4141B. Section 41A: supplementaryChapter 2 Public interest cases (ss. 42-58A)Power to make references (ss. 42-46)42. Intervention by Secretary of State in certain public interest cases43. Intervention notices under section 4244. Investigation and report by CMA44A. Additional investigation and report by OFCOM: media mergers45. Power of Secretary of State to refer matter to CMA46. References under section 45: supplementaryCases referred by European Commission under the EC Merger Regulation (ss. 46A-46C)46A. Cases referred by the European Commission where intervention notice is in force46B. Extension of preliminary assessment period46C. Power to request information in referred casesReports on references (ss. 46D-53)46D. Functions to be exercised by CMA groups47. Questions to be decided on references under section 4548. Cases where references or certain questions need not be decided49. Variation of references under section 4550. Investigations and reports on references under section 4551. Time-limits for investigations and reports by CMA52. Section 51: supplementary53. Restrictions on action where public interest considerations not finalisedDecisions of the Secretary of State (ss. 54-55)54. Decision of Secretary of State in public interest cases55. Enforcement action by Secretary of StateOther (ss. 56-58A)56. Competition cases where intervention on public interest grounds ceases57. Duties of CMA and OFCOM to inform Secretary of State58. Specified considerations58A. Construction of consideration specified in section 58(2C)Chapter 3 Other special cases (ss. 59-70)Special public interest cases (ss. 59-66)59. Intervention by Secretary of State in special public interest cases59A. Construction of conditions in section 59(3C) and (3D)60. Special intervention notices under section 5961. Initial investigation and report by CMA61A. Additional investigation and report by OFCOM: certain media mergers62. Power of Secretary of State to refer the matter62A. Functions to be exercised by CMA groups63. Questions to be decided on references under section 6264. Cancellation and variation of references under section 6265. Investigations and reports on references under section 6266. Decision and enforcement action by Secretary of StateEuropean mergers (ss. 67-68)67. Intervention to protect legitimate interests68. Scheme for protecting legitimate interestsMergers of energy network enterprises in Great Britain (ss. 68A-68F)68A. Relevant merger situations involving energy network mergers68B. Further duty to make references in relation to completed mergers68C. Further duty to make references in relation to anticipated mergers68D. Opinion of the Gas and Electricity Markets Authority68E. Combined references68F. Modification of this PartOther (69-70)69. Newspaper mergers70. Water mergersChapter 3A Mergers involving newspaper enterprises and foreign powers (ss. 70A-70G)70A. Intervention by the Secretary of State70B. Investigation and report by the CMA70C. Intervention to prevent foreign control of a newspaper enterprise70D. Other powers under this Part70E. Meaning of "foreign power"70F. Other interpretation70G. RegulationsChapter 4 Enforcement (ss. 71-95A)Powers exercisable before references under section 22, 33, 68B or 68C (ss. 71-76)71. Initial undertakings: completed mergers72. Initial enforcement orders: completed or anticipated mergers73. Undertakings in lieu of references under section 22(1), 33(1), 68B or 68C73A. Time-limits for consideration of undertakings73B. Section 73A: supplementary74. Effect of undertakings under section 7375. Order-making power where undertakings under section 73 not fulfilled etc.76. Supplementary interim order-making powerInterim restrictions and powers (ss. 77-81)77. Restrictions on certain dealings: completed mergers78. Restrictions on certain share dealings: anticipated mergers79. Sections 77 and 78: further interpretation provisions80. Interim undertakings81. Interim ordersFinal powers (ss. 82-84)82. Final undertakings83. Order-making power where final undertakings not fulfilled84. Final ordersPublic interest and special public interest cases (s. 85)85. Enforcement regime for public interest and special public interest casesUndertakings and orders: general provisions (ss. 86-91)86. Enforcement orders: general provisions87. Delegated power of directions88. Contents of certain enforcement orders89. Acceptance and subject-matter of undertakings90. Procedural requirements for certain undertakings and orders91. Register of undertakings and ordersEnforcement functions of CMA (ss. 92-93)92. Duty of CMA to monitor undertakings and orders93. Further role of CMA in relation to undertakings and ordersOther (ss. 94-95A)94. Rights to enforce undertakings and orders94AA. Enforcement of undertakings and orders: imposition of penalties94AB. Penalties under section 94AA: amount94B. Statement of policy in relation to functions under sections 94 and 94AA95. Rights to enforce statutory restrictionsTransferred EU merger commitments (ss. 95A-95B)95A Transferred EU merger commitments95B Power of directions in connection with transferred EU merger commitmentsChapter 5 Supplementary (ss. 96-130)Merger notices (ss. 96-102)96. Merger notices97. Period for considering merger notices98. Section 97: supplementary99. Certain functions of CMA in relation to merger notices100. Exceptions to protection given by merger notices101. Merger notices: regulations102. Power to modify sections 97 to 101General duties in relation to references (ss. 103-104A)103. Duty of expedition in relation to references under section 45 or 62104. Certain duties of relevant authorities to consult104A. Public consultation in relation to media mergersInformation and publicity requirements (ss. 105-108)105. General information duties of CMA and Commission106. Advice and information about references under section 22, 33, 68B or 68C106A. Advice and information in relation to media mergers106B. General advisory functions of OFCOM107. Further publicity requirements108. DefamationInvestigation powers (ss. 109-117)109. Attendance of witnesses and production of documents etc.109A Transferred EU merger commitments: witnesses, documents etc109B. Extra-territorial application of notices under section 109110. Enforcement of powers under section 109: imposition of penalties110A. Restriction on powers to impose penalties under section 110110B. Section 110A: supplementary provision111. Penalties: amount112. Penalties: main procedural requirements113. Payments and interest by instalments114. Appeals in relation to penalties115. Recovery of penalties116. Statement of policy116A. Intentional destruction etc of documents117. False or misleading informationReports (ss. 118-119)118. Excisions from reports119. Minority reports of CMAFurther provision about media mergers (ss. 119A-119B)119A. Other general functions of OFCOM in relation to this Part119B. Monitoring role for CMA in relation to media mergersMiscellaneous (ss. 120-123)120. Review of decisions under Part 3121. Fees122. Primacy of Community law123. Power to alter conditions for a relevant merger situationOther (ss. 124-130)124. Orders and regulations under Part 3125. Offences by bodies corporate126. Service of documents by the CMA, OFCOM or the Secretary of State127. Associated persons128. Supply of services and market for services etc.129. Other interpretation provisions130. Index of defined expressionsPart 4 Market Studies and Market Investigations (ss. 130A-184)Chapter 1 Market Studies and Market investigation references (ss. 130A-138)Market studies (s. 130A)130A. Duty to publish market study noticeMaking of references (ss. 131-133)131. Power of CMA to make references131A. Decisions about references under section 131: consultation131B. Market studies and the making of decisions to refer: time-limits etc131C. Time-limits under section 131B: supplementary132. Ministerial power to make references133. Contents of referencesDetermination of references (ss. 133A-138B)133A. Functions to be exercised by CMA groups134. Questions to be decided on market investigation references135. Variation of market investigation references136. Investigations and reports on market investigation references137. Time-limits for market investigations and reports138. Duty to remedy adverse effects138A. Time-limits for discharging duty under section 138138B. Section 138A: supplementaryChapter 2 Public interest cases (ss. 139-153)Intervention notices (ss. 139)139. Public interest intervention by Secretary of StateIntervention notices under section 139(1) (ss. 140-148A)140. Intervention notices under section 139(1)140A. Section 139(1) intervention notices: Secretary of State's duty to refer140B. Variation of restricted PI references and full PI references141. Restricted PI references: questions to be decided by CMA141A. Full PI references: questions to be decided by CMA141B. Full PI references: power of Secretary of State to appoint expert142. Investigations and reports by CMA143. Restricted PI references: publication etc of reports of CMA143A. Full PI references: publication etc of reports of CMA144. Time-limits for investigations and reports: Part 4145. Restrictions where public interest considerations notfinalised: Part 4146. Restricted PI references: Decision of Secretary of State146A. Full PI references: decision of Secretary of State147. Restricted PI references: Remedial action by Secretary of State147A. Full PI references: remedial action by Secretary of State148. Restricted PI references: reversion of the matter to CMA148A. Full PI references: reversion of the matter to CMAIntervention notices under section 139(2) (ss. 149-150)149. Intervention notices under section 139(2)150. Power of veto of Secretary of StateOther (ss. 151-153)151. Public interest intervention cases: interaction with general procedure152. Certain duties of CMA153. Specified considerations: Part 4Chapter 3 Enforcement (ss. 154-167C)Undertakings and orders (ss. 154-156)154. Undertakings in lieu of market investigation referencesUndertakings in lieu (ss. 154A-156)154A. Undertakings fully or partially in lieu of references or reports155. Undertakings in lieu: procedural requirements156. Effect of undertakings under in lieuInterim undertakings and orders (ss. 157-158)157. Interim undertakings: Part 4158. Interim orders: Part 4Final undertakings and orders (ss. 159-161A)159. Final undertakings: Part 4160. Order-making power where final undertakings not fulfilled: Part 4161. Final orders: Part 4161A. Acceptance of enforcement undertakings: Part 4Implementation trials of final orders and undertakings (ss. 161B-161E)161B. Implementation trials: purpose and interpretation161C. Power to conduct implementation trials161D. Implementation trials: notices161E. Implementation trials: supplementaryUndertakings and orders: monitoring, consultation and advice (ss. 162-163)162. Duty of CMA to monitor the carrying out of undertakings and orders: Part 4162A. Duty of CMA to monitor effectiveness of undertakings and orders: Part 4162B. Power to vary etc undertakings and orders: implementation trials163. Role of CMA in relation to undertakings and orders in public interest cases: Part 4Supplementary (ss. 164-167C)164. Enforcement undertakings and orders under this Part: general provisions165. Procedural requirements for certain undertakings and orders:Part 4166. Register of undertakings and orders: Part 4167. Rights to enforce undertakings and orders under this Part167A. Enforcement of undertakings and orders etc: imposition of penalties167B. Penalties under section 167A: amount167C. Statement of policy in relation to functions under sections 167 and 167AChapter 4 Supplementary (ss. 168-184)Regulated markets (s. 168)168. Regulated marketsConsultation, information and publicity (ss. 169-173)169. Certain duties of relevant authorities to consult: Part 4170. General information duties171. Advice and information: Part 4172. Further publicity requirements: Part 4173. Defamation: Part 4Investigation powers (ss. 174-176)174. Attendance of witnesses and production of documents etc.174ZA. Extra-territorial application of notices under section 174174A. Enforcement of powers under section 174: imposition of penalties174B. Restriction on powers to impose penalties under section 174A174C. Section 174B: supplementary provision174D. Penalties: amount174E. Statement of policy on penalties175. Enforcement of powers under section 174: offences176. Investigation powers of the CommissionReports (ss. 177-178)177. Excisions from reports etc: Part 4178. Minority reports of CMA: Part 4Other (ss. 179-184)179. Review of decisions under Part 4180. Offences181. Orders and regulations under Part 4182. Service of documents: Part 4183. Interpretation: Part 4184. Index of defined expressions: Part 4Part 5 The Competition Commission (ss. 185-187)185. The Commission186. Annual report of Commission187. Commission rules of procedurePart 6 Cartel offence (ss. 188-202)Cartel offence (ss. 188-191)188. Cartel offence188A. Circumstances in which cartel offence not committed188B. Defences to commission of cartel offence189. Cartel offence: supplementary190. Cartel offence: penalty and prosecution190A. Cartel offence: prosecution guidance191. ExtraditionCriminal investigations by OFT (ss. 192-202)192. Investigation of offences under section 188193. Powers when conducting an investigation194. Power to enter premises under a warrant195. Exercise of powers by authorised person196. Privileged information etc.197. Restriction on use of statements in court198. Use of statements obtained under Competition Act 1998199. Surveillance powers200. Authorisation of action in respect of property201. Offences202. Interpretation of sections 192 to 201Part 7 Miscellaneous Competition Provisions (ss. 203-209)Powers of entry under 1998 Act (s. 203)203. Powers of entryDirectors disqualification (s. 204)204. DisqualificationMiscellaneous (ss. 205-209)205. Super-complaints to regulators other than CMA206. Power to modify Schedule 8207. Repeal of Schedule 4 to the 1998 Act208. Repeal of Part 6 of Fair Trading Act 1973209. Reform of EU competition lawPart 8 Enforcement of certain consumer legislation (ss. 210-236)Introduction (ss. 210-213)210. Consumers211. Domestic infringements212. Schedule 13 infringements213. EnforcersEnforcement orders and interim enforcement orders (ss. 214-218)214. Consultation215. Applications216. Applications: directions by CMA217. Enforcement orders218. Interim enforcement orderOnline interface orders and interim online interface orders (ss. 218ZA-218ZD)218ZA. Applications218ZB. Online interface orders218ZC. Interim online interface orders218ZD. Online interface orders: supplementaryEnforcement procedure: supplementary (ss. 218A-223)218A. Unfair commercial practices: substantiation of claims219. Undertakings219A. Definition of enhanced consumer measures219B. Inclusion of enhanced consumer measures etc.219C. Availability of enhanced consumer measures to private enforcers220. Further proceedings221. Community infringements: proceedings222. Bodies corporate: accessories223. Bodies corporate: ordersInformation (ss. 224-227F)224. CMA225. Other enforcers226. Notices: procedure227. Notices: enforcement227A. Power to enter premises without warrant227B. Powers exercisable on the premises227C. Power to enter premises with warrant227D. Ancillary provisions about powers of entry227E. Obstructing, or failing to co-operate with, powers of entry227F. Retention of documents and goodsMiscellaneous (ss. 223A-231)223A. Investigatory powers228. Evidence229. Advice and information230. Notice to OFT of intended prosecution231. Notice of convictions and judgments to CMAInterpretation (ss. 232-235B)232. Goods and services233. Person supplying goods234. Supply of services235. Injunctions Directive235A. CPC Regulation235B. Dual enforcersCrown (s. 236)236. CrownPart 9 Information (ss. 237-247)Restrictions on disclosure (ss. 237-238)237. General restriction238. InformationPermitted disclosure (ss. 239-244)239. Consent240. Community obligations241. Statutory functions241A. Civil proceedings242. Criminal proceedings243. Overseas disclosures [Substituted with new ss. 243A-243F]243A. Overseas disclosures for both overseas and domestic purposes243B. Overseas disclosures for overseas purposes only243C. Overseas disclosures for designated cooperation arrangement purposes243D. Use and further disclosure of information disclosed under sections 243A and 243B243E. Directions by the Secretary of State relating to overseas disclosures under sections 243A and 243B243F Relevant considerations relating to overseas disclosures under sections 243A and 243B244. Specified information: considerations relevant to disclosureOffences (s. 245)245. OffencesGeneral (ss. 246-247)246A. Interpretation247. RepealsPart 10 Insolvency (ss. 248-272)Companies etc. (ss. 248-255)248. Replacement of Part II of Insolvency Act 1986249. Special administration regimes250. Prohibition of appointment of administrative receiver251. Abolition of Crown preference252. Unsecured creditors253. Liquidator's powers254. Application of insolvency law to foreign company255. Application of law about company arrangement or administration to non-companyIndividuals (ss. 256-269)256. Duration of bankruptcy257. Post-discharge restrictions258. Investigation by official receiver259. Income payments order260. Income payments agreement261. Bankrupt's home262. Powers of trustee in bankruptcy263. Repeal of certain bankruptcy offences264. Individual voluntary arrangement265. Disqualification from office: justice of the peace266. Disqualification from office: Parliament267. Disqualification from office: local government268. Disqualification from office: general269. Minor and consequential amendmentsMoney (ss. 270-272)270. Fees271. Insolvency Services Account: interest272. Insolvency Services AccountsPart 11 Supplementary (ss. 273-281)273. Interpretation274. Provision of financial assistance for consumer purposes275. Financial provision276. Transitional or transitory provision and savings277. Power to make consequential amendments etc.278. Minor and consequential amendments and repeals279. Commencement280. Extent281. Short titleSchedule 1 The Office of Fair Trading Schedule 2 The Competition Appeal TribunalSchedule 3 The Competition Service Schedule 3, Part 1 Constitution etc. (paras. 1-12)Schedule 3, Part 2 Transfers of property etc. between the Commission and the Service (paras. 13-16)Schedule 3, Part 3 Miscellaneous (paras. 17-18)Schedule 4 Tribunal: procedureSchedule 4, Part 1 General (paras. 1-8)Schedule 4, Part 2 Tribunal rules (paras. 9-26)Schedule 5 Proceedings under Part 1 of the 1998 ActSchedule 5A Energy network mergers affecting comparative regulation: modification of Chapter 1 of Part 3Schedule 6 Schedule to be inserted in the Water Industry Act 1991Schedule 6A Determination of when a foreign state newspaper merger situation has been createdSchedule 6B Control or influence of a person by a foreign powerSchedule 6B, Part 1 Conditions for control or influence (paras. 1-2)Schedule 6B, Part 2 Interpretation (paras. 3-14)Schedule 6B, Part 3 Power to amend circumstances in which there is control or influence (para. 15)Schedule 7 Enforcement regime for public interest and special public interest casesSchedule 8 Provision that may be contained incertain enforcement orders Schedule 9 Certain amendments of sectoral enactments Schedule 9, Part 1 Power of enforcement orders to amend licence conditions etc. (paras. 1-15)Schedule 9, Part 2 Application of Part 4 of this Act to sectoral regulators (paras. 16-26)Schedule 10 Procedural requirements for certain enforcement undertakings and ordersSchedule 11 The Competition CommissionSchedule 12 Competition Commission: certain procedural rulesSchedule 13 Listed enactmentsSchedule 13 Listed enactments (paras. 1-29)Schedule 13, Part 2 Provisions of directives and Regulations (paras. 10-16) [Substituted with Schedule 13]Schedule 14 Specified functionsSchedule 15 Enactments conferring functionsSchedule 16 Schedule B1 to Insolvency Act 1986Schedule 17 Administration: minor and consequential amendmentsSchedule 18 Schedule 2A to Insolvency Act 1986Schedule 19 Duration of bankruptcy: transitional provisionsSchedule 20 Schedule 4A to Insolvency Act 1986Schedule 21 Effect of bankruptcy restrictions order and undertakingSchedule 22 Individual voluntary arrangementSchedule 23 Individual insolvency: minor and consequential amendmentsSchedule 24 Transitional and transitory provisions and savingsSchedule 25 Minor and consequential amendmentsSchedule 26 Repeals and revocations
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47. Questions to be decided on references under section 45
(1) The CMA shall, on a reference under section 45(2) or (3), decide whether a relevant merger situation has been created.
(2) If the CMA decides that such a situation has been created, it shall, on a reference under section 45(2), decide the following additional questions -
(a) whether 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; and
(b) whether, taking account only of any substantial lessening of competition and the admissible public interest consideration or considerations concerned, the creation of that situation operates or may be expected to operate against the public interest.