Made | 17th June 2003 | ||
Coming into force | 20th June 2003 |
Determination of a relevant merger situation
2.
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, for the purposes of section 68(2)(a) of the Act and this Order, sections 23 to 32 of the Act (read together with section 34 of the Act and any Order made pursuant to that section) shall apply, but subject to the modifications mentioned in Schedule 1.
European intervention notices under section 67 of the Act
3.
- (1) A European 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 in accordance with paragraphs (2) and (3).
(2) A matter to which a European intervention notice relates is finally determined if -
(3) The time when a matter to which a European intervention notice relates is finally determined is -
Initial investigation and report by OFT
4.
- (1) Paragraph (2) applies where the Secretary of State has given a European intervention notice in relation to a relevant merger situation under section 67 of the Act.
(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 -
(4) The report shall include a decision as to whether the OFT believes that it is, or may be, the case that a European relevant merger situation has been created or (as the case may be) arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a European relevant merger situation.
(5) The report may, in particular, include advice and recommendations on any public interest consideration mentioned in the European 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 article 5.
(6) The OFT shall carry out such investigations as it considers appropriate for the purpose of producing a report under this article.
Power of Secretary of State to refer the matter
5.
- (1) Paragraphs (2) and (3) apply where the Secretary of State -
(2) The Secretary of State may make a reference to the Commission if she believes that it is or may be the case that -
(3) The Secretary of State may make a reference to the Commission if she believes that it is or may be the case that -
(4) No reference shall be made under this article if the making of the reference is prevented by section 69(1) of the Act or paragraph 4 of Schedule 2.
(5) The Secretary of State, in deciding whether to make a reference under this article, shall accept the decision of the OFT included in its report under article 4 by virtue of paragraph (4) of that article.
(6) Where the decision to make a reference under article 5 is made at any time on or after the end of the period of 24 weeks beginning with the giving of the European intervention notice concerned, the Secretary of State shall, in deciding whether to make such a reference, disregard any public interest consideration which is mentioned in the European intervention notice but which has not been finalised before the end of that period.
(7) The Secretary of State may, if she believes that there is a realistic prospect of the public interest consideration mentioned in paragraph (6) being finalised within the period of 24 weeks beginning with the giving of the European intervention notice concerned, delay deciding whether to make the reference concerned until the public interest consideration is finalised or, if earlier, the period expires.
(8) A reference under this article shall, in particular, specify -
Questions to be decided on references under article 5
6.
- (1) The Commission shall, on a reference under article 5(2), decide whether a European relevant merger situation has been created.
(2) The Commission shall, on a reference under article 5(3), decide whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a European relevant merger situation.
(3) If the Commission decides that a European 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 European relevant merger situation, it shall, on a reference under article 5, decide whether, taking account only of the admissible public interest consideration or considerations concerned, the creation of that situation operates or may be expected to operate against the public interest.
(4) The Commission shall, if it has decided on a reference under article 5 that the creation of a European relevant merger situation operates or may be expected to operate against the public interest, decide the following additional questions -
(5) In this article "admissible public interest consideration" means any public interest consideration which is specified in the reference under article 5 and which the Commission is not under a duty to disregard.
Cancellation or variation of references under article 5
7.
- (1) The Commission shall cancel a reference under article 5(3) if it considers that the proposal to make arrangements of the kind mentioned in the reference has been abandoned.
(2) In relation to the question whether a European relevant merger situation has been created or the question whether a European relevant merger situation will be created, a reference under article 5 may be framed so as to require the Commission to exclude from consideration -
(3) In relation to the question whether any such result as is mentioned in section 23(2)(b) of the Act has arisen or the question whether any such result will arise, a reference under article 5 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.
(4) 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 paragraph (2) or (3) of article 5 as if it had been made under paragraph (3) or (as the case may be) (2) of that article; and, in such cases, references in this Order to references under those enactments shall, so far as may be necessary, be construed accordingly.
(5) Where by virtue of paragraph (4), the Commission treats a reference made under paragraph (2) or (3) of article 5 as if it had been made under paragraph (3) or (as the case may be) (2) of that article, paragraphs 1, 2, 7 and 8 of Schedule 2, in particular, apply as if the reference had been made under paragraph (3) or (as the case may be) (2) of that article instead of under paragraph (2) or (3) of that article.
(6) Paragraph (7) applies in relation to any undertaking accepted under paragraph 1 of Schedule 2, or any order made under paragraph 2 of that Schedule, which is in force immediately before the Commission, by virtue of paragraph (4), treats a reference made under paragraph (2) or (3) of article 5 as if it had been made under paragraph (3) or (as the case may be) (2) of that article.
(7) The undertaking or order shall, so far as applicable, continue in force as if it were -
and the undertaking or order concerned may be varied, superseded, released or revoked accordingly.
(8) The Secretary of State may at any time vary a reference under article 5.
(9) The Secretary of State shall consult the Commission before varying any such reference.
(10) Paragraph (9) shall not apply if the Commission has requested the variation concerned.
(11) No variation by the Secretary of State under this article shall be capable of altering the public interest consideration or considerations specified in the reference or the period permitted by virtue of article 8 within which the report of the Commission under that article is to be prepared and given to the Secretary of State.
Investigations and reports on references under article 5
8.
- (1) The Commission shall prepare a report on a reference under article 5 and give it to the Secretary of State within the period permitted by article 9.
(2) The report shall, in particular, contain -
(3) The Commission shall carry out such investigations as it considers appropriate for the purpose of producing a report under this article.
Time-limits and investigations and reports by Commission
9.
- (1) The Commission shall prepare its report under article 8 and give it to the Secretary of State under that article within the period of 24 weeks beginning with the date of the reference concerned.
(2) The Commission may extend, by no more than 8 weeks, the period within which a report under article 8 is to be prepared and given to the Secretary of State if it considers that there are special reasons why the report cannot be prepared and given to the Secretary of State within that period.
(3) The Commission may extend the period within which a report under article 8 is prepared and given to the Secretary of State 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 of the Act.
(4) In paragraph (3) "relevant person" means -
(5) For the purposes of paragraph (4) 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.
(6) An extension under paragraph (2) or (3) shall come into force when published in accordance with article 14.
(7) An extension under paragraph (3) shall continue in force until -
Article 9: supplementary
10.
- (1) A period extended under paragraph (2) of article 9 may also be extended under paragraph (3) of that article and a period extended under paragraph (3) of that article may also be extended under paragraph (2) of that article.
(2) No more than one extension is possible under article 9(2).
(3) Where a period within which a report under article 8 is prepared and given to the Secretary of State is extended or further extended under article 9(2) or (3), the period as extended or (as the case may be) further extended, shall, subject to paragraphs (4) and (5), 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).
(4) Paragraph (5) applies where -
(5) In calculating the period of the further extension, any days or fractions of days of the kind mentioned in paragraph (4)(c) shall be disregarded.
(6) Any Regulations made pursuant to section 52(12) of the Act shall apply for the purposes of article 9(7).
Restrictions on action where public interest considerations not finalised
11.
- (1) The Commission shall cancel a reference under article 5 if -
(2) Where a reference to the Commission under article 5 specifies a public interest consideration which has not been finalised before the making of the reference, the Commission shall not give its report to the Secretary of State under article 8 in relation to that reference unless -
(3) The Commission shall, in reporting on any of the questions mentioned in article 6(3) and (4), disregard any public interest consideration which was not finalised on the giving of the European intervention notice and has not been finalised within the period of 24 weeks beginning with the giving of the notice concerned.
(4) Paragraphs (1) to (3) are without prejudice to the power of the Commission to carry out investigations in relation to any public interest consideration to which it might be able to have regard in its report.
Decision and enforcement by Secretary of State
12.
- (1) Paragraph (2) applies where the Secretary of State has received a report of the Commission under article 8 in relation to a European relevant merger situation.
(2) The Secretary of State shall, in connection with a reference under article 5(2) or (3), decide the questions which the Commission is required to decide by virtue of article 6(1) to (3).
(3) The Secretary of State shall publish her decision under paragraph (2) within a period of 30 days beginning with the receipt of the report of the Commission under article 8.
(4) In making her decisions under paragraph (2), the Secretary of State shall disregard any public interest consideration not specified in the reference under article 5 and any public interest consideration disregarded by the Commission for the purposes of its report.
(5) In making her decisions under paragraph (2), the Secretary of State shall accept the decisions of the report of the Commission under article 8 as to whether a European 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 European relevant merger situation.
(6) Paragraph (7) applies where the Secretary of State has decided under paragraph (2) that -
and has so decided, and published her decision, within the period required by paragraph (3).
(7) The Secretary of State may take such action under paragraph 9 or 11 of Schedule 2 as she considers 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 creation of the European relevant merger situation concerned.
(8) In making a decision under paragraph (7), the Secretary of State shall, in particular, have regard to the report of the Commission under article 8.
(9) In determining for the purpose of paragraph (3) the period of 30 days no account shall be taken of -
Enforcement action in European intervention notice cases
13.
- (1) Schedule 2 (which provides for enforcement action in European intervention notice cases) shall have effect.
(2) The OFT may advise the Secretary of State in relation to the taking by her of enforcement action under Schedule 2.
Publicity requirements
14.
- (1) The Commission shall publish -
(2) The Secretary of State shall publish -
(3) Where any person is under a duty by virtue of paragraphs (1) or (2) to publish the result of any action taken by that person or any decision made by that person, the person concerned shall, subject to paragraph (4), also publish that person's reasons for the action concerned or (as the case may be) the decision concerned.
(4) Such reasons need not, if it is not reasonably practicable to do so, be published at the same time as the result of the action concerned or (as the case may be) as the decision concerned.
(5) The Secretary of State shall publish her reasons for any decision made by her under article 12(2).
(6) Such reasons may be published after the publication of the decision concerned if it is not reasonably practicable to publish them at the same time as the publication of the decision.
(7) The Secretary of State shall publish -
(8) Where the Secretary of State has decided under article 12(7) to accept an undertaking under paragraph 9 of Schedule 2 or to make an order under paragraph 11 of that Schedule, she shall (after the acceptance of the undertaking or (as the case may be) the making of the order) lay details of her decision and her reasons for it, and the Commission's report under article 8, before each House of Parliament.
Other provisions of the Act applicable to this Order
15.
The other provisions of the Act mentioned in Schedule 3 shall apply for the purposes of this Order with the modifications mentioned in that Schedule.
Consequential amendments
16.
Schedule 4 (which contains consequential amendments) shall have effect.
Gerry Sutcliffe,
Parliamentary Under-Secretary of State for Employment Relations, Competition and Consumers, Department of Trade and Industry
17th June 2003
(e) the references to the OFT in section 24(2)(a) and (b) included references to the Secretary of State;
(f) the references to the OFT in sections 25(1) to (3), (6) and (8) and 31 included references to the Secretary of State;
(g) the references to the OFT in section 25(4) and (5) were references to the Secretary of State;
(h) the reference in section 25(4) to section 73 were a reference to paragraph 3 of Schedule 2 to this Order;
(i) after section 25(5) of the Act there were inserted -
(4) An undertaking which is in force under this paragraph in relation to a reference or possible reference under article 5 shall cease to be in force if an order under paragraph 2 or an undertaking under paragraph 3 comes into force in relation to that reference.
(5) An undertaking under this paragraph shall, if it has not previously ceased to be in force, cease to be in force when the European intervention notice concerned ceases to be in force.
(6) No undertaking shall be accepted by the Secretary of State under this paragraph before the making of a reference under article 5 unless the undertaking relates to a European relevant merger situation which has been, or may have been, created.
(7) The Secretary of State shall, as soon as reasonably practicable, consider any representations received by her in relation to varying or releasing an undertaking under this paragraph.
(8) In this paragraph and paragraph 2 "pre-emptive action" means action which might prejudice the reference or possible reference concerned under article 5 or impede the taking of any action under this Order which may be justified by the Secretary of State's decisions on the reference.
2
(1) Sub-paragraph (2) applies where a European intervention notice is in force.
(2) The Secretary of State may by order, for the purpose of preventing pre-emptive action -
(3) An order under this paragraph -
(4) An order which is in force under this paragraph in relation to a reference or possible reference under article 5 shall cease to be in force if an undertaking under paragraph 1 or 3 comes into force in relation to that reference.
(5) An order under this paragraph shall, if it has not previously ceased to be in force, cease to be in force when the European intervention notice concerned ceases to be in force.
(6) No order shall be made by the Secretary of State under this paragraph before the making of a reference under article 5 unless the order relates to a European relevant merger situation which has been, or may have been, created.
(7) The Secretary of State shall, as soon as reasonably practicable, consider any representations received by her in relation to varying or revoking an order under this paragraph.
Undertakings in lieu of reference under article 5
3
(1) Sub-paragraph (2) applies if the Secretary of State has power to make a reference to the Commission under article 5 and otherwise intends to make such a reference.
(2) The Secretary of State may, instead of making such a reference and for the purpose of remedying, mitigating or preventing any of the effects adverse to the public interest which have or may have resulted, or which may be expected to result, from the creation of the European relevant merger situation concerned accept from such of the parties concerned as she considers appropriate undertakings to take such action as she considers appropriate.
(3) In proceeding under sub-paragraph (2), the Secretary of State shall, in particular, accept the decisions of the OFT included in its report under article 4 so far as they relate to the matters mentioned in paragraphs (3)(a) and (4) of that article.
(4) No undertaking shall be accepted by the Secretary of State under this paragraph in connection with a possible reference under article 5 if a public interest consideration mentioned in the European intervention notice concerned has not been finalised and the period of 24 weeks beginning with the giving of that notice has not expired.
(5) The Secretary of State may delay making a decision as to whether to accept any such undertaking (and any related decision as to whether to make a reference under article 5) if she considers that there is a realistic prospect of the public interest consideration being finalised within the period of 24 weeks beginning with the giving of the European intervention notice concerned.
(6) A delay under sub-paragraph (5) shall not extend beyond -
(7) An undertaking under this paragraph -
(8) An undertaking under this paragraph which is in force in relation to a European relevant merger situation shall cease to be in force if an order comes into force under paragraph 5 or 6 in relation to that undertaking.
(9) The Secretary of State shall, as soon as reasonably practicable, consider any representations received by her in relation to varying or releasing an undertaking under this paragraph.
4
(1) The Secretary of State shall not make a reference under article 5 in relation to the creation of a European relevant merger situation if -
(2) Sub-paragraph (1) does not prevent the making of a reference if material facts about relevant arrangements or transactions, or relevant proposed arrangements or transactions, were not notified (whether in writing or otherwise) to the Secretary of State or the OFT or made public before any undertaking concerned was accepted.
(3) For the purposes of sub-paragraph (2) arrangements or transactions, or proposed arrangements or transactions, are relevant if they are the ones in consequence of which the enterprises concerned ceased or may have ceased, or may cease, to be distinct enterprises.
(4) In sub-paragraph (2) "made public" means so publicised as to be generally known or readily ascertainable.
5
(1) Sub-paragraph (2) applies where the Secretary of State considers that -
(2) The Secretary of State may, for any of the purposes mentioned in paragraph 3(2), make an order under this paragraph.
(3) Sub-paragraph (3) of paragraph 3 shall apply for the purposes of sub-paragraph (2) above as it applies for the purposes of sub-paragraph (2) of that paragraph.
(4) An order under this paragraph may contain -
(5) An order under this paragraph -
(6) No order shall be varied or revoked under this paragraph unless the OFT advises that such a variation or revocation is appropriate by reason of a change of circumstances.
6
(1) Sub-paragraph (2) applies where -
(2) The Secretary of State may, for the purpose of preventing any action which might prejudice the making of that order, make an order under this paragraph.
(3) No order shall be made under sub-paragraph (2) unless the Secretary of State has reasonable grounds for suspecting that it is or may be the case that action which might prejudice the making of the order under paragraph 5 or (as the case may be) 10 is in progress or in contemplation.
(4) An order under sub-paragraph (2) may -
(5) An order under this paragraph shall come into force at such time as is determined by or under the order.
(6) An order under this paragraph shall, if it has not previously ceased to be in force, cease to be in force on -
(7) The Secretary of State shall, as soon as reasonably practicable, consider any representations received by her in relation to varying or revoking an order under this paragraph.
Statutory restrictions following reference under article 5
7
(1) Sub-paragraphs (2) and (3) apply where -
(2) No relevant person shall, without the consent of the Secretary of State -
(3) No relevant person shall, without the consent of the Secretary of State, assist in any of the activities mentioned in paragraphs (a) to (c) of sub-paragraph (2).
(4) The prohibitions in sub-paragraphs (2) and (3) do not apply in relation to anything which the person concerned is required to do by virtue of any enactment.
(5) The consent of the Secretary of State under sub-paragraph (2) or (3) -
(6) Paragraph (c) of sub-paragraph (5) shall not apply if the Secretary of State considers that publication is not necessary for the purposes mentioned in that paragraph.
(7) Sub-paragraphs (2) and (3) shall apply to a person's conduct outside the United Kingdom if (and only if) he is -
(8) For the purpose of this paragraph a reference under article 5 is finally determined if -
(9) For the purposes of this paragraph the time when a reference under article 5 is finally determined is -
(10) In this paragraph "relevant person" means -
8
(1) Sub-paragraph (2) applies where -
(2) No relevant person shall, without the consent of the Secretary of State, directly or indirectly acquire during the relevant period an interest in shares in a company if any enterprise to which the reference relates is carried on by or under the control of that company.
(3) The consent of the Secretary of State under sub-paragraph (2) -
(4) Paragraph (c) of sub-paragraph (3) shall not apply if the Secretary of State considers that publication is not necessary for the purpose mentioned in that paragraph.
(5) Sub-paragraph (2) shall apply to a person's conduct outside the United Kingdom if (and only if) he is -
(6) In this paragraph -
(7) For the purposes of the definition of "relevant period" in sub-paragraph (6), a reference under article 5 is finally determined if -
(8) For the purposes of the definition of "relevant period" in sub-paragraph (6) above, the time when a reference under article 5 is finally determined is -
(9) Section 79 of the Act shall apply for the purposes of paragraph 7 and this paragraph in relation to a reference under article 5 as it applies for the purposes of sections 77 and 78 in relation to a reference under section 22 or 33 of the Act.
(10) In its application by virtue of sub-paragraph (9) section 79 shall have effect as if -
Final undertakings and orders
9
(1) The Secretary of State may, in accordance with article 12(6) to (8) accept, from such persons as she considers appropriate, undertakings to take action specified or described in the undertakings.
(2) An undertaking under this paragraph -
(3) An undertaking which is in force under this paragraph in relation to a reference under article 5 shall cease to be in force if an order under paragraph 6(1)(b) or 10 comes into force in relation to the subject-matter of the undertaking.
(4) No undertaking shall be accepted under this paragraph in relation to a reference under article 5 if an order has been made under -
(5) The Secretary of State shall, as soon as reasonably practicable, consider any representations received by her in relation to varying or releasing an undertaking under this paragraph.
10
(1) Sub-paragraph (2) applies where the Secretary of State considers that -
(2) The Secretary of State may, for any purpose mentioned in article 12(7), make an order under this paragraph.
(3) Paragraph (8) of article 12 shall apply for the purpose of sub-paragraph (2) above as it applies for the purposes of article 12(7).
(4) An order under this paragraph may contain -
(5) An order under this paragraph -
(6) No order shall be varied or revoked under this paragraph unless the OFT advises that such a variation or revocation is appropriate by reason of a change of circumstances.
11
(1) The Secretary of State may, in accordance with article 12(7), make an order under this paragraph.
(2) An order under this paragraph may contain -
(3) An order under this paragraph shall come into force at such time as is determined by or under the order.
(4) No order shall be made under this paragraph in relation to a reference under article 5 if an undertaking has been accepted under paragraph 9 in relation to that reference.
(5) No order shall be varied or revoked under this paragraph unless the OFT advises that such a variation or revocation is appropriate by reason of a change of circumstances.
(2) Section 69 shall apply as if in subsection (1) for the words "section 22, 33, 45 or 62" there were substituted "article 5 of the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003".
(3) Section 86 shall apply as if -
(4) Section 88 shall apply as if in subsection (1) -
(5) Section 89 shall apply as if in subsection (2) -
(6) Section 91 shall apply as if -
(c) in subsection (5) -
(7) Section 92 shall apply as if -
(b) in subsection (3) the words "the Commission or (as the case may be)", in all places where they appear, were omitted;
(c) in subsection (3)(a) the words "it or (as the case may be)" were omitted;
(d) in subsection (3)(e) for the word "to" there were substituted "and";
(e) in subsection (3)(f) the words "(4) and" were omitted;
(f) subsections (4)(a) to (d) were omitted; and
(g) in subsection (5) for the words "this Part" in both places where they appear there were substituted "the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003".
(8) Section 93 shall apply as if -
(9) Section 94 shall apply as if -
(10) Section 95 shall apply as if -
(b) subsection (4) were omitted;
(c) in subsection (5) for the words "Schedule 7" there were substituted "Schedule 2 to the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003"; and
(d) in subsection (6) for the words "Subsections (4) and" there were substituted "Subsection".
(11) Section 103 shall apply as if -
(12) Section 104 shall apply as if -
(13) Section 105 shall apply as if -
(b) subsection (2) were omitted; and
(c) in subsections (3)(a) and (3)(b), (4), (5)(a) and (5)(b) and (6) for the words "this Part" there were substituted "the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003".
(14) Section 108 shall apply as if for the words "this Part" there were substituted "the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003".
(15) Section 109 shall apply as if in subsections (1), (2), (3), (5) and (6) for the words "this Part" there were substituted "the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003".
(16) Section 110 shall apply as if in subsections (2) and (9) for the words from "section 39(4)" to "65(3))" there were substituted "article 9(3) of the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003".
(17) Section 111 shall apply as if in subsection (5)(b)(ii) for the words from "published", where it appears for the first time, to "(or given)", where it appears for the second time, there were substituted "given under article 8 of the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003, or, if no such report is given within the period permitted for that purpose by that Order, the latest day on which the report may be given".
(18) Section 117 shall apply as if in subsections (1)(a) and (2) for the words "this Part" there were substituted "the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003".
(19) Section 118 shall apply as if -
(20) Section 119 shall apply as if in subsection (1) for the words "this Part", in both places where they appear, there were substituted "the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003".
(21) Section 120 shall apply as if -
(22) Section 124 shall apply as if -
(23) Section 125 shall apply as if in subsections (1) and (3) for the words "this Part" there were substituted "the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003".
(24) Section 126 shall apply as if in subsections (1), (4) and (6) for the words "this Part" there were substituted "the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003".
(25) Section 127 shall apply as if in subsection (3) for the words "section 22, 33, 45 or 62" there were substituted "article 5 of the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003".
(26) Section 128 shall apply as if in subsection (1) for the words "this Part" where they appear on both occasions there were substituted "the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003".
(27) Section 129 shall apply as if in subsections (1) to (4) for the words "this Part" where they appear on all occasions there were substituted "the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003".
2
(1) The following Schedules of the Act shall apply, with the modifications mentioned in sub-paragraphs (2) and (3) below, for the purposes of this Order -
(2) Schedule 8 shall apply as if -
(c) in paragraph 24 for paragraphs (a) to (c) there were substituted "the Secretary of State".
(3) Schedule 10 shall apply as if -
(b) in paragraphs 1(b) and 6(b) -
(c) in paragraph 2(1) the words "the OFT, the Commission or (as the case may be)" were omitted.
3
Section 243(1) of the Act (overseas disclosures) shall not apply to information which comes to a public authority in connection with an investigation under this Order.
Patents Act 1977 (c.37)
3
(1) In section 50A of the Patents Act 1977 (powers exercisable following merger and market investigations) -
(2) In section 53(2) of the Patents Act 1977 (statements in certain reports of the Competition Commission to be prima facie evidence of the matters stated) the reference to Part 3 shall have effect as if it included a reference to the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003.
Telecommunications Act 1984 (c.12)
4
In section 95 of the Telecommunications Act 1984 (modification of licence conditions by order), the reference in subsection (2)(a) to paragraph 5, 10 or 11 of Schedule 7 to the Enterprise Act 2002 shall have effect as if it included a reference to paragraph 5, 10 or 11 of Schedule 2 to the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003.
Airports Act 1986 (c.31)
5
In section 54 of the Airports Act 1986 (modification of certain conditions in force under Part 4 of that Act), the reference in subsection (1A)(a) to paragraph 5, 10 or 11 of Schedule 7 to the Enterprise Act 2002 shall have effect as if it included a reference to paragraph 5, 10 or 11 of Schedule 2 to the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003.
Gas Act 1986 (c.44)
6
In section 27 of the Gas Act 1986 (modification of licence conditions by order), the reference in subsection (1ZA)(a) to paragraph 5, 10 or 11 of Schedule 7 to the Enterprise Act 2002 shall have effect as if it included a reference to paragraph 5, 10 or 11 of Schedule 2 to the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003.
Copyright, Design and Patents Act 1988 (c.48)
7
(1) In section 144 of the Copyright, Design and Patents Act 1988 (powers exercisable in consequence of report of Competition Commission) -
(b) the reference in subsection (2) to paragraphs 5, 10 and 11 of Schedule 7 to the Enterprise Act 2002 shall have effect as if it included a reference to paragraphs 5, 10 and 11 of Schedule 2 to the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003.
(2) In section 238 of the Copyright, Designs and Patents Act 1988 (powers exercisable for protection of the public interest) -
(b) the reference in subsection (2) to paragraphs 5, 10 and 11 of Schedule 7 to the Enterprise Act 2002 shall have effect as if it included a reference to paragraphs 5, 10 and 11 of Schedule 2 to the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003.
(3) In Schedule 2A to the Copyright, Designs and Patents Act 1988, in paragraph 17 (powers exercisable in consequence of competition report) -
(b) the reference in sub-paragraph (2) to paragraphs 5, 10 and 11 of Schedule 7 to the Enterprise Act 2002 shall have effect as if it included a reference to paragraphs 5, 10 and 11 of Schedule 2 to the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003.
Electricity Act 1989 (c.44)
8
In section 15 of the Electricity Act 1989 (modification of licence conditions by order), the reference in subsection (2)(a) to paragraph 5, 10 or 11 of Schedule 7 to the Enterprise Act 2002 shall have effect as if it included a reference to paragraph 5, 10 or 11 of Schedule 2 to the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003.
Broadcasting Act 1990 (c.42)
9
In section 193 of the Broadcasting Act 1990 (modification of networking arrangements in consequence of competition legislation), the reference in subsection (2)(a) to paragraph 5, 10 or 11 of Schedule 7 to the Enterprise Act 2002 shall have effect as if it included a reference to paragraph 5, 10 or 11 of Schedule 2 to the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003.
Water Industry Act 1991 (c.56)
10
In section 17 of the Water Industry Act 1991 (modification of conditions of appointment by order), the reference in subsection (2)(a) to paragraph 5, 10 or 11 of Schedule 7 to the Enterprise Act 2002 shall have effect as if it included a reference to paragraph 5, 10 or 11 of Schedule 2 to the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003.
Electricity (Northern Ireland) Order 1992 (S.I. 1992/231 (N.I. 1))
11
In article 18 of the Electricity (Northern Ireland) Order 1992 (modification by order under other statutory provisions), the reference in paragraph (2)(a) to paragraph 5, 10 or 11 of Schedule 7 to the Enterprise Act 2002 shall have effect as if it included a reference to paragraph 5, 10 or 11 of Schedule 2 to the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003.
Railways Act 1993 (c.43)
12
(1) In section 16 of the Railways Act 1993 (modification of licence conditions by order), the reference in subsection (2)(a) to paragraph 5, 10 or 11 of Schedule 7 to the Enterprise Act 2002 shall have effect as if it included a reference to paragraph 5, 10 or 11 of Schedule 2 to the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003.
(2) In section 66 of the Railways Act 1993 (amendments to the Fair Trading Act 1973), the reference in subsection (3) to Part 3 of the Enterprise Act 2002 shall have effect as if it included a reference to the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003.
Airports (Northern Ireland) Order 1994 (S.I. 1994/426 (N.I. 1))
13
In article 45 of the Airports (Northern Ireland) Order 1994 (modification of certain conditions in force under Part 4 of that Order), the reference in paragraph (1A)(a) to paragraph 5, 10 or 11 of Schedule 7 to the Enterprise Act 2002 shall have effect as if it included a reference to paragraph 5, 10 or 11 of Schedule 2 to the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003.
Gas (Northern Ireland) Order 1996 (S.I. 1996/275 (N.I. 2))
14
In article 18 of the Gas (Northern Ireland) Order 1996 (modification of licence conditions by order), the reference in paragraph (1A)(a) to paragraph 5, 10 or 11 of Schedule 7 to the Enterprise Act 2002 shall have effect as if it included a reference to paragraph 5, 10 or 11 of Schedule 2 to the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003.
Competition Act 1998 (c.41)
15
(1) In Schedule 1 to the Competition Act 1988 (exclusions: mergers and concentrations) -
(2) In Schedule 7 to the Competition Act 1998 (the Competition Commission) -
(e) the reference in paragraph 20(4)(a) to special public interest merger references shall have effect as if it included a reference to European public interest merger references.
(3) In Schedule 7A to the Competition Act 1998 (the Competition Commission: procedural rules for mergers and market references etc) in paragraph 1 the reference in the definition of "merger investigation" to section 62 of the Enterprise Act 2002 shall have effect as if it included a reference to article 5 of the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003.
Postal Services Act 2000 (c.26)
16
In section 21 of the Postal Services Act 2000 (modification of licence conditions by order), the reference in subsection (2)(a) to paragraph 5, 10 or 11 of Schedule 7 to the Enterprise Act 2002 shall have effect as if it included a reference to paragraph 5, 10 or 11 of Schedule 2 to the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003.
Transport Act 2000 (c.38)
17
In section 19 of the Transport Act 2000 (modification of licence conditions by order), the reference in subsection (2)(a) to paragraph 5, 10 or 11 of Schedule 7 to the Enterprise Act 2002 shall have effect as if it included a reference to paragraph 5, 10 or 11 of Schedule 2 to the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003.
[2] Article 296(1)(b) of the EC Treaty states that "any Member State may take such measures as it considers necessary for the protection of the essential interests of its security which are connected with the production of or trade in arms, munitions and war material; such measures shall not adversely affect the conditions of competition in the common market regarding products which are not intended for specifically military purposes".back
© Crown copyright 2003 | Prepared 24 June 2003 |