Enterprise Act 2002 (c. 40)

(The document as of February, 2008)

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(3) Sub-paragraphs (3) and (4) of paragraph 3 shall apply for the purposes of sub-paragraph (2) above as they apply for the purposes of sub-paragraph (2) of that paragraph.

(4) An order under this paragraph may contain--

(a) anything permitted by Schedule 8; and

(b) such supplementary, consequential or incidental provision as the Secretary of State considers appropriate.

(5) An order under this paragraph

(a) shall come into force at such time as is determined by or under the order; and

(b) may contain provision which is different from the provision contained in the undertaking concerned.

(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--

(a) the Secretary of State has the power to make an order under paragraph 5 in relation to a particular undertaking and intends to make such an order; or

(b) the Secretary of State has the power to make an order under paragraph 10 in relation to a particular undertaking and intends to make such an order.

(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--

(a) prohibit or restrict the doing of things which the Secretary of State considers would prejudice the making of the order under paragraph 5 or 10;

(b) impose on any person concerned obligations as to the carrying on of any activities or the safeguarding of any assets;

(c) provide for the carrying on of any activities or the safeguarding of any assets either by the appointment of a person to conduct or supervise the conduct of any activities (on such terms and with such powers as may be specified or described in the order) or in any other manner;

(d) do anything which may be done by virtue of paragraph 19 of Schedule 8.

(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--

(a) the coming into force of an order under paragraph 5 or (as the case may be) 10 in relation to the undertaking concerned; or

(b) the making of the decision not to proceed with such an order.

(7) The Secretary of State shall, as soon as reasonably practicable, consider any representations received by him in relation to varying or revoking an order under this paragraph.

Statutory restrictions following reference under section 45 or 62

7 (1) Sub-paragraphs (2) and (3) apply where--

(a) a reference has been made under section 45(2) or (3) or 62(2) but not finally determined; and

(b) no undertakings under paragraph 1 are in force in relation to the relevant merger situation concerned or (as the case may be) the special merger situation concerned and no orders under paragraph 2 are in force in relation to that situation.

(2) No relevant person shall, without the consent of the Secretary of State--

(a) complete any outstanding matters in connection with any arrangements which have resulted in the enterprises concerned ceasing to be distinct enterprises;

(b) make any further arrangements in consequence of that result (other than arrangements which reverse that result); or

(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)--

(a) may be general or specific;

(b) may be revoked by the Secretary of State; and

(c) shall be published in such manner as the Secretary of State considers appropriate for bringing it to the attention of any person entitled to the benefit of it.

(6) Paragraph (c) of sub-paragraph (5) shall not apply if the Secretary of State considers that publication is not necessary for the purpose 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--

(a) a United Kingdom national;

(b) a body incorporated under the law of the United Kingdom or of any part of the United Kingdom; or

(8) For the purpose of this paragraph a reference under section 45(2) or (3) is finally determined if--

(a) the time within which the Commission is to prepare a report under section 50 in relation to the reference and give it to the Secretary of State has expired and no such report has been so prepared and given;

(b) the Commission decides to cancel the reference under section 53(1);

(c) 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;

(d) the Secretary of State decides under section 54(2) to make no finding at all in the matter;

(e) the Secretary of State otherwise decides under section 54(2) not to make an adverse public interest finding;

(f) 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 this Schedule nor to make an order under paragraph 11 of this Schedule; or

(g) the Secretary of State decides under section 54(2) to make an adverse public interest finding and accepts an undertaking under paragraph 9 of this Schedule or makes an order under paragraph 11 of this Schedule.

(9) For the purpose of this paragraph a reference under section 62(2) is finally determined if--

(a) the time within which the Commission is to prepare a report under section 65 in relation to the reference and give it to the Secretary of State has expired and no such report has been so prepared and given;

(b) the time within which the Secretary of State is to make and publish a decision under section 66(2) has expired and no such decision has been made and published;

(c) the Secretary of State decides under subsection (2) of section 66 otherwise than as mentioned in subsection (5) of that section;

(d) the Secretary of State decides under subsection (2) of section 66 as mentioned in subsection (5) of that section but decides neither to accept an undertaking under paragraph 9 of this Schedule nor to make an order under paragraph 11 of this Schedule; or

(e) the Secretary of State decides under subsection (2) of section 66 as mentioned in subsection (5) of that section and accepts an undertaking under paragraph 9 of this Schedule or makes an order under paragraph 11 of this Schedule.

(10) For the purposes of this paragraph the time when a reference under section 45(2) or (3) or (as the case may be) 62(2) is finally determined is--

(a) in a case falling within sub-paragraph (8)(a) or (c) or (as the case may be) (9)(a) or (b), the expiry of the time concerned;

(b) in a case falling within sub-paragraph (8)(b), (d) or (e) or (as the case may be) (9)(c), the making of the decision concerned;

(c) in a case falling within sub-paragraph (8)(f) or (as the case may be) (9)(d), the making of the decision neither to accept an undertaking under paragraph 9 of this Schedule nor to make an order under paragraph 11 of this Schedule; and

(d) in a case falling within sub-paragraph (8)(g) or (as the case may be) (9)(e), the acceptance of the undertaking concerned or (as the case may be) the making of the order concerned.

(11) In this paragraph "relevant person" means--

(a) any person who carries on any enterprise to which the reference relates or who has control of any such enterprise;

(b) any subsidiary of any person falling within paragraph (a); or

8 (1) Sub-paragraph (2) applies where--

(a) a reference has been made under section 45(4) or (5) or 62(3); and

(b) no undertakings under paragraph 1 are in force in relation to the relevant merger situation concerned or (as the case may be) special merger situation concerned and no orders under paragraph 2 are in force in relation to that situation.

(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)--

(a) may be general or specific;

(b) may be revoked by the Secretary of State; and

(c) shall be published in such manner as the Secretary of State considers appropriate for bringing it to the attention of any person entitled to the benefit of it.

(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--

(a) a United Kingdom national;

(b) a body incorporated under the law of the United Kingdom or of any part of the United Kingdom; or

(6) In this paragraph--

"company" includes any body corporate;
"relevant period" means the period beginning with the publication of the decision of the Secretary of State to make the reference concerned and ending when the reference is finally determined;
"relevant person" means--
(a)
any person who carries on any enterprise to which the reference relates or who has control of any such enterprise;
(b)
any subsidiary of any person falling within paragraph (a); or
(c)
any person associated with any person falling within paragraph (a) or any subsidiary of any person so associated; and
"share" means share in the capital of a company, and includes stock.

(7) For the purposes of the definition of "relevant period" in sub-paragraph (6), a reference under section 45(4) or (5) is finally determined if--

(a) the Commission cancels the reference under section 48(1) or 53(1);

(b) the time within which the Commission is to prepare a report under section 50 in relation to the reference and give it to the Secretary of State has expired and no such report has been so prepared and given;

(c) 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;

(d) the Secretary of State decides under section 54(2) to make no finding at all in the matter;

(e) the Secretary of State otherwise decides under section 54(2) not to make an adverse public interest finding;

(8) For the purposes of the definition of "relevant period" in sub-paragraph (6), a reference under section 62(3) is finally determined if--

(a) the Commission cancels the reference under section 64(1);

(b) the time within which the Commission is to prepare a report under section 65 in relation to the reference and give it to the Secretary of State has expired and no such report has been so prepared and given;

(c) the time within which the Secretary of State is to make and publish a decision under section 66(2) has expired and no such decision has been made and published;

(d) the Secretary of State decides under subsection (2) of section 66 otherwise than as mentioned in subsection (5) of that section;

(e) the Secretary of State decides under subsection (2) of section 66 as mentioned in subsection (5) of that section but decides neither to accept an undertaking under paragraph 9 of this Schedule nor to make an order under paragraph 11 of this Schedule; or

(f) the Secretary of State decides under subsection (2) of section 66 as mentioned in subsection (5) of that section and accepts an undertaking under paragraph 9 of this Schedule or makes an order under paragraph 11 of this Schedule.

(9) For the purposes of the definition of "relevant period" in sub-paragraph (6) above, the time when a reference under section 45(4) or (5) or (as the case may be) 62(3) is finally determined is--

(a) in a case falling within sub-paragraph (7)(a), (d) or (e) or (as the case may be) (8)(a) or (d), the making of the decision concerned;

(b) in a case falling within sub-paragraph (7)(b) or (c) or (as the case may be) (8)(b) or (c), the expiry of the time concerned;

(c) in a case falling within sub-paragraph (7)(f) or (as the case may be) (8)(e), the making of the decision neither to accept an undertaking under paragraph 9 of this Schedule nor to make an order under paragraph 11 of this Schedule; and

(d) in a case falling within sub-paragraph (7)(g) or (as the case may be) (8)(f), the acceptance of the undertaking concerned or (as the case may be) the making of the order concerned.

(10) Section 79 shall apply for the purposes of paragraph 7 and this paragraph in relation to a reference under section 45 or 62 as it applies for the purposes of sections 77 and 78 in relation to a reference under section 22 or 33.

(11) In its application by virtue of sub-paragraph (10) section 79 shall have effect as if--

(a) subsections (1) and (2) were omitted; and

(b) for the reference in subsection (4) to the OFT there were substituted a reference to the Secretary of State.

Final undertakings and orders

9 (1) The Secretary of State may, in accordance with section 55 or (as the case may be) 66(5) to (7), accept, from such persons as he considers appropriate, undertakings to take action specified or described in the undertakings.

(2) An undertaking under this paragraph--

(a) shall come into force when accepted;

(b) may be varied or superseded by another undertaking; and

(3) An undertaking which is in force under this paragraph in relation to a reference under section 45 or 62 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 section 45 or 62 if an order has been made under--

(a) paragraph 6(1)(b) or 10 in relation to the subject-matter of the undertaking; or

(b) paragraph 11 in relation to that reference.

(5) The Secretary of State shall, as soon as reasonably practicable, consider any representations received by him in relation to varying or releasing an undertaking under this section.

10 (1) Sub-paragraph (2) applies where the Secretary of State considers that--

(a) an undertaking accepted by him under paragraph 9 has not been, is not being or will not be fulfilled; or

(b) in relation to an undertaking accepted by him under that paragraph, information which was false or misleading in a material respect was given to him or the OFT by the person giving the undertaking before he decided to accept the undertaking.

(2) The Secretary of State may, for any purpose mentioned in section 55(2) or (as the case may be) 66(6), make an order under this paragraph.

(3) Subsections (3) and (4) of section 55 or (as the case may be) subsection (7) of section 66 shall apply for the purposes of sub-paragraph (2) above as they or it applies for the purposes of section 55(2) or (as the case may be) 66(6).

(4) An order under this paragraph may contain--

(a) anything permitted by Schedule 8; and

(b) such supplementary, consequential or incidental provision as the Secretary of State considers appropriate.

(5) An order under this paragraph--

(a) shall come into force at such time as is determined by or under the order; and

(b) may contain provision which is different from the provision contained in the undertaking concerned.

(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 section 55 or (as the case may be) 66(5) to (7), make an order under this paragraph.

(2) An order under this paragraph may contain--

(a) anything permitted by Schedule 8; and

(b) such supplementary, consequential or incidental provision as the Secretary of State considers appropriate.

(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 section 45 or (as the case may be) 62 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.

Section 86(4)

SCHEDULE 8 Provision that may be contained in certain enforcement orders

Introductory

1 This Schedule applies in relation to such orders, and to such extent, as is provided by this Part and Part 4 and any other enactment; and references in this Schedule to an order shall be construed accordingly.

General restrictions on conduct

2 (1) An order may--

(a) prohibit the making or performance of an agreement;

(b) require any party to an agreement to terminate the agreement.

(2) An order made by virtue of sub-paragraph (1) shall not--

(a) prohibit the making or performance of; or

(b) require any person to terminate,

an agreement so far as, if made, the agreement would relate, or (as the case may be) so far as the agreement relates, to the terms and conditions of employment of any workers or to the physical conditions in which any workers are required to work.

3 (1) An order may prohibit the withholding from any person of--

(a) any goods or services;

(b) any orders for any such goods or services.

(2) References in sub-paragraph (1) to withholding include references to--

(a) agreeing or threatening to withhold; and

(b) procuring others to withhold or to agree or threaten to withhold.

4 An order may prohibit requiring as a condition of the supply of goods or services to any person--

(a) the buying of any goods;

(b) the making of any payment in respect of services other than the goods or services supplied;

(c) the doing of any other such matter or the refraining from doing anything mentioned in paragraph (a) or (b) or any other such matter.

5 An order may prohibit--

(a) discrimination between persons in the prices charged for goods or services;

(b) anything which the relevant authority considers to be such discrimination;

(c) procuring others to do anything which is such discrimination or which the relevant authority considers to be such discrimination.

6 An order may prohibit--

(a) giving, or agreeing to give in other ways, any preference in respect of the supply of goods or services or in respect of the giving of orders for goods or services;

(b) giving, or agreeing to give in other ways, anything which the relevant authority considers to be a preference in respect of the supply of goods or services or in respect of the giving of orders for goods or services;

7 An order may prohibit--

(a) charging, for goods or services supplied, prices differing from those in any published list or notification;

(b) doing anything which the relevant authority considers to be charging such prices.

8 (1) An order may regulate the prices to be charged for any goods or services.

(2) No order shall be made by virtue of sub-paragraph (1) unless the relevant report in relation to the matter concerned identifies the prices charged for the goods or services as requiring remedial action.

(3) In this paragraph "the relevant report" means the report of the Commission which is required by the enactment concerned before an order can be made under this Schedule.

9 An order may prohibit the exercise of any right to vote exercisable by virtue of the holding of any shares, stock or securities.

General obligations to be performed

10 (1) An order may require a person to supply goods or services or to do anything which the relevant authority considers appropriate to facilitate the provision of goods or services.

(2) An order may require a person who is supplying, or is to supply, goods or services to supply such goods or services to a particular standard or in a particular manner or to do anything which the relevant authority considers appropriate to facilitate the provision of such goods or services to that standard or in that manner.

11 An order may require any activities to be carried on separately from any other activities.

Acquisitions and divisions

12 (1) An order may prohibit or restrict--

(a) the acquisition by any person of the whole or part of the undertaking or assets of another person's business;

(b) the doing of anything which will or may result in two or more bodies corporate becoming interconnected bodies corporate.

(2) An order may require that if--

(a) an acquisition of the kind mentioned in sub-paragraph (1)(a) is made; or

(b) anything is done which results in two or more bodies corporate becoming interconnected bodies corporate;

the persons concerned or any of them shall observe any prohibitions or restrictions imposed by or under the order.

(3) This paragraph shall also apply to any result consisting in two or more enterprises ceasing to be distinct enterprises (other than any result consisting in two or more bodies corporate becoming interconnected bodies corporate).

13 (1) An order may provide for--

(a) the division of any business (whether by the sale of any part of the undertaking or assets or otherwise);

(b) the division of any group of interconnected bodies corporate.

(2) For the purposes of sub-paragraph (1)(a) all the activities carried on by way of business by any one person or by any two or more interconnected bodies corporate may be treated as a single business.

(3) An order made by virtue of this paragraph may contain such provision as the relevant authority considers appropriate to effect or take account of the division, including, in particular, provision as to--

(a) the transfer or creation of property, rights, liabilities or obligations;

(b) the number of persons to whom the property, rights, liabilities or obligations are to be transferred or in whom they are to be vested;

(d) the adjustment of contracts (whether by discharge or reduction of any liability or obligation or otherwise);

(e) the creation, allotment, surrender or cancellation of any shares, stock or securities;

(f) the formation or winding up of any company or other body of persons corporate or unincorporate;

(g) the amendment of the memorandum and articles or other instruments regulating any such company or other body of persons;

(h) the extent to which, and the circumstances in which, provisions of the order affecting a company or other body of persons corporate or unincorporate in its share capital, constitution or other matters may be altered by the company or other body of persons concerned;

(i) the registration of the order under any enactment by a company or other body of persons corporate or unincorporate which is affected by it as mentioned in paragraph (h);

(j) the continuation, with any necessary change of parties, of any legal proceedings;

(k) the approval by the relevant authority or another person of anything required by virtue of the order to be done or of any person to whom anything is to be transferred, or in whom anything is to be vested, by virtue of the order; or

(l) the appointment of trustees or other persons to do anything on behalf of another person which is required of that person by virtue of the order or to monitor the doing by that person of any such thing.

14 The references in paragraph 13 to the division of a business as mentioned in sub-paragraph (1)(a) of that paragraph shall, in the case of an order under section 75, 83, 84, 160 or 161, or an order under paragraph 5, 10 or 11 of Schedule 7, be construed as including references to the separation, by the sale of any part of any undertaking or assets concerned or other means, of enterprises which are under common control (within the meaning of section 26) otherwise than by reason of their being enterprises of interconnected bodies corporate.

Supply and publication of information

15 (1) An order may require a person supplying goods or services to publish a list of prices or otherwise notify prices.

(2) An order made by virtue of this paragraph may also require or prohibit the publication or other notification of further information.

16 An order may prohibit any person from notifying (whether by publication or otherwise) to persons supplying goods or services prices recommended or suggested as appropriate to be charged by those persons for those goods or services.

17 (1) An order may require a person supplying goods or services to publish--

(a) accounting information in relation to the supply of the goods or services;

(b) information in relation to the quantities of goods or services supplied;

(2) In sub-paragraph (1) "accounting information", in relation to a supply of goods or services, means information as to--

(a) the costs of the supply, including fixed costs and overheads;

(b) the manner in which fixed costs and overheads are calculated and apportioned for accounting purposes of the supplier; and

18 An order made by virtue of paragraph 15 or 17 may provide for the manner in which information is to be published or otherwise notified.

19 An order may--

(a) require any person to supply information to the relevant authority;

(b) where the OFT is not the relevant authority, require any person to supply information to the OFT;

(c) provide for the publication, by the person who has received information by virtue of paragraph (a) or (b), of that information.

National security

20 (1) An order may make such provision as the person making the order considers to be appropriate in the interests of national security (within the meaning of section 58(1)).

(2) Such provision may, in particular, include provision requiring a person to do, or not to do, particular things.

Supplementary

21 (1) An order, as well as making provision in relation to all cases to which it may extend, may make provision in relation to--

(a) those cases subject to specified exceptions; or

(b) any particular case or class of case.

(2) An order may, in relation to the cases in relation to which it applies, make the full provision which may be made by it or any less provision (whether by way of exception or otherwise).

(3) An order may make provision for matters to be determined under the order.

(4) An order may--

(a) make different provision for different cases or classes of case or different purposes;

(b) make such transitional, transitory or saving provision as the person making it considers appropriate.

22 (1) An order which may prohibit the doing of anything (or the refraining from doing anything) may in particular by virtue of paragraph 21(2) prohibit the doing of that thing (or the refraining from doing of it) except to such extent and in such circumstances as may be provided by or under the order.

(2) Any such order may, in particular, prohibit the doing of that thing (or the refraining from doing of it)--

(a) without the agreement of the relevant authority or another person; or

(b) by or in relation to a person who has not been approved by the relevant authority or another person.

Interpretation

23 References in this Schedule to the notification of prices or other information are not limited to the notification in writing of prices or other information.

24 In this Schedule "the relevant authority" means--

(a) in the case of an order to be made by the OFT, the OFT;

(b) in the case of an order to be made by the Commission, the Commission; and

Sections 86(5), 164(2) and 168(9)

SCHEDULE 9 Certain amendments of sectoral enactments

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