Enterprise Act 2002 (c. 40)

(The document as of February, 2008)

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(2) Any person to whom such an undertaking or order relates shall have a duty to comply with it.

(3) The duty shall be owed to any person who may be affected by a contravention of the undertaking or (as the case may be) order.

(4) Any breach of the duty which causes such a person to sustain loss or damage shall be actionable by him.

(5) In any proceedings brought under subsection (4) against a person to whom an enforcement undertaking or an enforcement order relates it shall be a defence for that person to show that he took all reasonable steps and exercised all due diligence to avoid contravening the undertaking or (as the case may be) order.

(6) Compliance with an enforcement undertaking or an enforcement order shall also be enforceable by civil proceedings brought by the OFT for an injunction or for interdict or for any other appropriate relief or remedy.

(7) Compliance with an undertaking under section 80 or 82, an order made by the Commission under section 76 or an order under section 81, 83 or 84, shall also be enforceable by civil proceedings brought by the Commission for an injunction or for interdict or for any other appropriate relief or remedy.

(8) Compliance with an undertaking under paragraph 1, 3 or 9 of Schedule 7, an order made by the Secretary of State under paragraph 2 of that Schedule or an order under paragraph 5, 6, 10 or 11 of that Schedule, shall also be enforceable by civil proceedings brought by the Secretary of State for an injunction or for interdict or for any other appropriate relief or remedy.

(9) Subsections (6) to (8) shall not prejudice any right that a person may have by virtue of subsection (4) to bring civil proceedings for contravention or apprehended contravention of an enforcement undertaking or an enforcement order.

95 Rights to enforce statutory restrictions

(1) The obligation to comply with section 77(2) or (3) or 78(2) or paragraph 7(2) or (3) or 8(2) of Schedule 7 shall be a duty owed to any person who may be affected by a contravention of the enactment concerned.

(2) Any breach of the duty which causes such a person to sustain loss or damage shall be actionable by him.

(3) In any proceedings brought under subsection (2) against a person who has an obligation to comply with section 77(2) or (3) or 78(2) or paragraph 7(2) or (3) or 8(2) of Schedule 7 it shall be a defence for that person to show that he took all reasonable steps and exercised all due diligence to avoid contravening the enactment concerned.

(4) Compliance with section 77(2) or (3) or 78(2) shall also be enforceable by civil proceedings brought by the OFT or the Commission for an injunction or for interdict or for any other appropriate relief or remedy.

(5) Compliance with paragraph 7(2) or (3) or 8(2) of Schedule 7 shall also be enforceable by civil proceedings brought by the OFT or the Secretary of State for an injunction or for interdict or for any other appropriate relief or remedy.

(6) Subsections (4) and (5) shall not prejudice any right that a person may have by virtue of subsection (2) to bring civil proceedings for contravention or apprehended contravention of section 77(2) or (3) or 78(2) or paragraph 7(2) or (3) or 8(2) of Schedule 7.

Chapter 5 Supplementary

Merger notices

96 Merger notices

(1) A person authorised to do so by regulations under section 101 may give notice to the OFT of proposed arrangements which might result in the creation of a relevant merger situation.

(2) Any such notice (in this Part a "merger notice")--

(a) shall be in the prescribed form; and

(b) shall state that the existence of the proposal has been made public.

(3) No reference shall be made under section 22, 33 or 45 in relation to--

(a) arrangements of which notice is given under subsection (1) above or arrangements which do not differ from them in any material respect; or

(b) the creation of any relevant merger situation which is, or may be, created in consequence of carrying such arrangements into effect;

if the period for considering the merger notice has expired without a reference being made under that section in relation to those arrangements.

(4) Subsection (3) is subject to section 100.

(5) In this section and sections 99(5)(c) and 100(1)(c) "prescribed" means prescribed by the OFT by notice having effect for the time being and published in the London, Edinburgh and Belfast Gazettes.

(6) In this Part "notified arrangements" means arrangements of which notice is given under subsection (1) above or arrangements not differing from them in any material respect.

97 Period for considering merger notices

(1) The period for considering a merger notice is, subject as follows, the period of 20 days beginning with the first day after--

(a) the notice has been received by the OFT; and

(b) any fee payable by virtue of section 121 to the OFT in respect of the notice has been paid.

(2) Where no intervention notice is in force in relation to the matter concerned, the OFT may by notice to the person who gave the merger notice extend by a further 10 days the period for considering the merger notice.

(3) Where an intervention notice is in force in relation to the matter concerned and there has been no extension under subsection (2), the OFT may by notice to the person who gave the merger notice extend by a further 20 days the period for considering the merger notice.

(4) Where an intervention notice is in force in relation to the matter concerned and there has been an extension under subsection (2), the OFT may by notice to the person who gave the merger notice extend the period for considering the merger notice by a further number of days which, including any extension already made under subsection (2), does not exceed 20 days.

(5) The OFT may by notice to the person who gave the merger notice extend the period for considering a merger notice if the OFT considers that the person has failed to provide, within the period stated in a notice under section 99(2) and in the authorised or required manner, information requested of him in that notice.

(6) An extension under subsection (5) shall be for the period until the person concerned provides the information to the satisfaction of the OFT or, if earlier, the cancellation by the OFT of the extension.

(7) The OFT may by notice to the person who gave the merger notice extend the period for considering a merger notice if the OFT is seeking undertakings under section 73 or (as the case may be) the Secretary of State is seeking undertakings under paragraph 3 of Schedule 7.

(8) An extension under subsection (7) shall be for the period beginning with the receipt of the notice under that subsection and ending with the earliest of the following events--

(a) the giving of the undertakings concerned;

(b) the expiry of the period of 10 days beginning with the first day after the receipt by the OFT of a notice from the person from whom the undertakings are being sought stating that he does not intend to give the undertakings; or

(9) The Secretary of State may by notice to the person who gave the merger notice extend the period for considering a merger notice if, by virtue of paragraph 3(6) of Schedule 7, he decides to delay a decision as to whether to make a reference under section 45.

(10) An extension under subsection (9) shall be for the period of the delay.

(11) The OFT may by notice to the person who gave the merger notice extend the period for considering a merger notice if the European Commission is considering a request made, in relation to the matter concerned, by the United Kingdom (whether alone or with others) under article 22(3) of the European Merger Regulations (but is not yet proceeding with the matter in pursuance of such a request).

(12) An extension under subsection (11) shall be for the period beginning with the receipt of the notice under that subsection and ending with the receipt of a notice under subsection (13).

(13) The OFT shall, in connection with any notice given by it under subsection (11), by notice inform the person who gave the merger notice of the completion by the European Commission of its consideration of the request of the United Kingdom.

98 Section 97: supplementary

(1) A notice under section 97(2), (3), (4), (5), (7), (9) or (11) shall be given, before the end of the period for considering the merger notice, to the person who gave the merger notice.

(2) A notice under section 97(5)--

(a) shall also be given within 5 days of the end of the period within which the information is to be provided and which is stated in the notice under section 99(2); and

(b) shall also inform the person who gave the merger notice of--

(i) the OFT's opinion as mentioned in section 97(5); and

(ii) the OFT's intention to extend the period for considering a merger notice.

(3) In determining for the purposes of section 97(1), (2), (3), (4) or (8)(b) or subsection (2)(a) above any period which is expressed in the enactment concerned as a period of days or number of days no account shall be taken of--

(a) Saturday, Sunday, Good Friday and Christmas Day; and

(b) any day which is a bank holiday in England and Wales.

(4) Any reference in this Part (apart from in section 97(1) and section 99(1)) to the period for considering a merger notice shall, if that period is extended by virtue of any one or more of subsections (2), (3), (4) (5), (7), (9) and (11) of section 97 in relation to a particular case, be construed in relation to that case as a reference to that period as so extended; but only one extension is possible under section 97(2), (3) or (4).

(5) Where the period for considering a merger notice is extended or further extended by virtue of section 97, the period as extended or (as the case may be) further extended shall, subject to subsections (6) and (7), be calculated by taking the period being extended and adding to it the period of the extension (whether or not those periods overlap in time).

(6) Subsection (7) applies where--

(a) the period for considering a merger notice is further extended;

(b) the further extension and at least one previous extension is made under one or more of subsections (5), (7), (9) and (11) of section 97; and

(c) the same days or fractions of days are included in or comprise the further extension and are included in or comprise at least one such previous extension.

(7) In calculating the period of the further extension, any days or fractions of days of the kind mentioned in subsection (6)(c) shall be disregarded.

99 Certain functions of OFT and Secretary of State in relation to merger notices

(1) The OFT shall, so far as practicable and when the period for considering any merger notice begins, take such action as the OFT considers appropriate to bring--

(a) the existence of the proposal;

(b) the fact that the merger notice has been given; and

to the attention of those whom the OFT considers would be affected if the arrangements were carried into effect.

(2) The OFT may by notice to the person who gave the merger notice request him to provide the OFT with such information as the OFT or (as the case may be) the Secretary of State may require for the purpose of carrying out its or (as the case may be) his functions in relation to the merger notice.

(3) A notice under subsection (2) shall state--

(a) the information required;

(b) the period within which the information is to be provided; and

(c) the possible consequences of not providing the information within the stated period and in the authorised or required manner.

(4) A notice by the OFT under subsection (2) shall be given, before the end of the period for considering the merger notice, to the person who gave the merger notice.

(5) The OFT may, at any time before the end of the period for considering any merger notice, reject the notice if--

(a) the OFT suspects that any information given in respect of the notified arrangements (whether in the merger notice or otherwise) by the person who gave the notice or any connected person is in any material respect false or misleading;

(b) the OFT suspects that it is not proposed to carry the notified arrangements into effect;

(c) any prescribed information is not given in the merger notice or any information requested by notice under subsection (2) is not provided as required; or

(d) the OFT considers that the notified arrangements are, or if carried into effect would result in, a concentration with a Community dimension within the meaning of the European Merger Regulations.

(6) In this section and section 100 "connected person", in relation to the person who gave a merger notice, means--

(a) any person who, for the purposes of section 127, is associated with him; or

(b) any subsidiary of the person who gave the merger notice or of any person so associated with him.

100 Exceptions to protection given by merger notices

(1) Section 96(3) does not prevent any reference being made to the Commission if--

(a) before the end of the period for considering the merger notice, the OFT rejects the notice under section 99(5);

(b) before the end of that period, any of the enterprises to which the notified arrangements relate cease to be distinct from each other;

(i) is, or ought to be, known to the person who gave the merger notice or any connected person; and

(ii) is material to the notified arrangements;

is not disclosed to the OFT by such time before the end of that period as may be specified in regulations under section 101;

(d) at any time after the merger notice is given but before the enterprises to which the notified arrangements relate cease to be distinct from each other, any of those enterprises ceases to be distinct from any enterprise other than an enterprise to which those arrangements relate;

(e) the six months beginning with the end of the period for considering the merger notice expires without the enterprises to which the notified arrangements relate ceasing to be distinct from each other;

(f) the merger notice is withdrawn; or

(g) any information given in respect of the notified arrangements (whether in the merger notice or otherwise) by the person who gave the notice or any connected person is in any material respect false or misleading.

(2) Subsection (3) applies where--

(a) two or more transactions which have occurred, or, if any arrangements are carried into effect, will occur, may be treated for the purposes of a reference under section 22, 33 or 45 as having occurred simultaneously on a particular date; and

(b) section 96(3) does not prevent such a reference in relation to the last of those transactions.

(3) Section 96(3) does not prevent such a reference in relation to any of those transactions which actually occurred less than six months before--

(a) that date; or

(b) the actual occurrence of another of those transactions in relation to which such a reference may be made (whether or not by virtue of this subsection).

(4) In determining for the purposes of subsections (2) and (3) the time at which any transaction actually occurred, no account shall be taken of any option or other conditional right until the option is exercised or the condition is satisfied.

(5) In this section references to the enterprises to which the notified arrangements relate are references to those enterprises that would have ceased to be distinct from one another if the arrangements mentioned in the merger notice concerned had been carried into effect at the time when the notice was given.

101 Merger notices: regulations

(1) The Secretary of State may make regulations for the purposes of sections 96 to 100.

(2) The regulations may, in particular--

(a) provide for section 97(1), (2), (3) or (4) or section 100(1)(e) to apply as if any reference to a period of days or months were a reference to a period specified in the regulations for the purposes of the enactment concerned;

(b) provide for the manner in which any merger notice is authorised or required to be rejected or withdrawn, and the time at which any merger notice is to be treated as received or rejected;

(d) provide for the manner in which any information requested by the OFT or any other material information is authorised or required to be provided or disclosed, and the time at which such information is to be treated as provided or disclosed (including the time at which it is to be treated as provided to the satisfaction of the OFT for the purposes of section 97(6));

(e) provide for the person who gave the merger notice to be informed, in circumstances in which section 97(6) applies--

(i) of the fact that the OFT is satisfied as to the provision of the information requested by the OFT or (as the case may be) of the OFT's decision to cancel the extension; and

(ii) of the time at which the OFT is to be treated as so satisfied or (as the case may be) of the time at which the cancellation is to be treated as having effect;

(f) provide for the person who gave the merger notice to be informed, in circumstances in which section 97(8) applies--

(i) of any decision by the OFT to cancel the extension; and

(ii) of the time at which such a cancellation is to be treated as having effect;

(g) provide for the time at which any fee is to be treated as paid;

(h) provide that a person is, or is not, to be treated, in such circumstances as may be specified in the regulations, as acting on behalf of a person authorised by regulations under this section to give a merger notice or a person who has given such a notice.

102 Power to modify sections 97 to 101

The Secretary of State may, for the purposes of determining the effect of giving a merger notice and the action which may be or is to be taken by any person in connection with such a notice, by order modify sections 97 to 101.

General duties in relation to references

103 Duty of expedition in relation to references

(1) In deciding whether to make a reference under section 22 or 33 the OFT shall have regard, with a view to the prevention or removal of uncertainty, to the need for making a decision as soon as reasonably practicable.

(2) In deciding whether to make a reference under section 45 or 62 the Secretary of State shall have regard, with a view to the prevention or removal of uncertainty, to the need for making a decision as soon as reasonably practicable.

104 Certain duties of relevant authorities to consult

(1) Subsection (2) applies where the relevant authority is proposing to make a relevant decision in a way which the relevant authority considers is likely to be adverse to the interests of a relevant party.

(2) The relevant authority shall, so far as practicable, consult that party about what is proposed before making that decision.

(3) In consulting the party concerned, the relevant authority shall, so far as practicable, give the reasons of the relevant authority for the proposed decision.

(4) In considering what is practicable for the purposes of this section the relevant authority shall, in particular, have regard to--

(a) any restrictions imposed by any timetable for making the decision; and

(b) any need to keep what is proposed, or the reasons for it, confidential.

(5) The duty under this section shall not apply in relation to the making of any decision so far as particular provision is made elsewhere by virtue of this Part for consultation before the making of that decision.

(6) In this section--

"the relevant authority" means the OFT, the Commission or the Secretary of State;
"relevant decision" means--
(a)
in the case of the OFT, any decision by the OFT--
(i)
as to whether to make a reference under section 22 or 33 or accept undertakings under section 73 instead of making such a reference; or
(ii)
to vary under section 37 such a reference;
(b)
in the case of the Commission, any decision on the questions mentioned in section 35(1) or (3), 36(1) or (2), 47 or 63; and
(c)
in the case of the Secretary of State, any decision by the Secretary of State--
(i)
as to whether to make a reference under section 45 or 62; or
(ii)
to vary under section 49 or (as the case may be) 64 such a reference; and
"relevant party" means any person who appears to the relevant authority to control enterprises which are the subject of the reference or possible reference concerned.

Information and publicity requirements

105 General information duties of OFT and Commission

(1) Where the OFT decides to investigate a matter so as to enable it to decide whether to make a reference under section 22 or 33, or so as to make a report under section 44 or 61, it shall, so far as practicable, take such action as it considers appropriate to bring information about the investigation to the attention of those whom it considers might be affected by the creation of the relevant merger situation concerned or (as the case may be) the special merger situation concerned.

(2) Subsection (1) does not apply in relation to arrangements which might result in the creation of a relevant merger situation if a merger notice has been given in relation to those arrangements under section 96.

(3) The OFT shall give the Commission--

(a) such information in its possession as the Commission may reasonably require to enable the Commission to carry out its functions under this Part; and

(b) any other assistance which the Commission may reasonably require for the purpose of assisting it in carrying out its functions under this Part and which it is within the power of the OFT to give.

(4) The OFT shall give the Commission any information in its possession which has not been requested by the Commission but which, in the opinion of the OFT, would be appropriate to give to the Commission for the purpose of assisting it in carrying out its functions under this Part.

(5) The OFT and the Commission shall give the Secretary of State--

(a) such information in their possession as the Secretary of State may by direction reasonably require to enable him to carry out his functions under this Part; and

(b) any other assistance which the Secretary of State may by direction reasonably require for the purpose of assisting him in carrying out his functions under this Part and which it is within the power of the OFT or (as the case may be) the Commission to give.

(6) The OFT shall give the Secretary of State any information in its possession which has not been requested by the Secretary of State but which, in the opinion of the OFT, would be appropriate to give to the Secretary of State for the purpose of assisting him in carrying out his functions under this Part.

(7) The Commission shall have regard to any information given to it under subsection (3) or (4); and the Secretary of State shall have regard to any information given to him under subsection (5) or (6).

(8) Any direction given under subsection (5)--

(a) shall be in writing; and

(b) may be varied or revoked by a subsequent direction.

106 Advice and information about references under sections 22 and 33

(1) As soon as reasonably practicable after the passing of this Act, the OFT shall prepare and publish general advice and information about the making of references by it under section 22 or 33.

(2) The OFT may at any time publish revised, or new, advice or information.

(3) As soon as reasonably practicable after the passing of this Act, the Commission shall prepare and publish general advice and information about the consideration by it of references under section 22 or 33 and the way in which relevant customer benefits may affect the taking of enforcement action in relation to such references.

(4) The Commission may at any time publish revised, or new, advice or information.

(5) Advice and information published under this section shall be prepared with a view to--

(a) explaining relevant provisions of this Part to persons who are likely to be affected by them; and

(b) indicating how the OFT or (as the case may be) the Commission expects such provisions to operate.

(6) Advice (or information) published by virtue of subsection (1) or (3) may include advice (or information) about the factors which the OFT or (as the case may be) the Commission may take into account in considering whether, and if so how, to exercise a function conferred by this Part.

(7) Any advice or information published by the OFT or the Commission under this section shall be published in such manner as the OFT or (as the case may be) the Commission considers appropriate.

(8) In preparing any advice or information under this section, the OFT shall consult the Commission and such other persons as it considers appropriate.

(9) In preparing any advice or information under this section, the Commission shall consult the OFT and such other persons as it considers appropriate.

107 Further publicity requirements

(1) The OFT shall publish--

(a) any reference made by it under section 22 or 33 or any decision made by it not to make such a reference (other than a decision made by virtue of subsection (2)(b) of section 33);

(b) any variation made by it under section 37 of a reference under section 22 or 33;

(c) such information as it considers appropriate about any decision made by it under section 57(1) to bring a case to the attention of the Secretary of State;

(d) any enforcement undertaking accepted by it under section 71;

(e) any enforcement order made by it under section 72 or 76 or paragraph 2 of Schedule 7;

(f) any variation, release or revocation of such an undertaking or order;

(g) any decision made by it as mentioned in section 76(6)(b); and

(h) any decision made by it to dispense with the requirements of Schedule 10.

(2) The Commission shall publish--

(a) any cancellation by it under section 37(1) of a reference under section 33;

(b) any decision made by it under section 37(2) to treat a reference made under section 22 or 33 as if it had been made under section 33 or (as the case may be) 22;

(c) any extension by it under section 39 of the period within which a report under section 38 is to be prepared and published;

(d) any decision made by it to cancel an extension as mentioned in section 39(8)(b);

(e) any decision made by it under section 41(2) neither to accept an undertaking under section 82 nor to make an order under section 84;

(f) any decision made by it that there has been a material change of circumstances as mentioned in subsection (3) of section 41 or there is another special reason as mentioned in that subsection of that section;

(g) any cancellation by it under section 48(1) or 53(1) of a reference under section 45 or any cancellation by it under section 64(1) of a reference under section 62;

(h) any decision made by it under section 49(1) to treat--

(i) a reference made under subsection (2) or (3) of section 45 as if it had been made under subsection (4) or (as the case may be) (5) of that section; or

(ii) a reference made under subsection (4) or (5) of section 45 as if it had been made under subsection (2) or (as the case may be) (3) of that section;

(i) any extension by it under section 51 of the period within which a report under section 50 is to be prepared and published;

(j) any decision made by it under section 51(8)(b) to cancel such an extension;

(k) any extension by it under section 51 as applied by section 65(3) of the period within which a report under section 65 is to be prepared and published;

(l) any decision made by it under section 51(8)(b) as applied by section 65(3) to cancel such an extension;

(m) any decision made by it under section 64(2) to treat a reference made under subsection (2) or (3) of section 62 as if it had been made under subsection (3) or (as the case may be) (2) of that section;

(n) any decision made by it as mentioned in section 76(6)(b);

(o) any enforcement order made by it under section 76 or 81;

(p) any enforcement undertaking accepted by it under section 80;

(q) any variation, release or revocation of such an order or undertaking; and

(r) any decision made by it to dispense with the requirements of Schedule 10.

(3) The Secretary of State shall publish--

(a) any intervention notice or special intervention notice given by him;

(b) any report of the OFT under section 44 or 61 which has been received by him;

(d) any variation made by him under section 49 of a reference under section 45 or under section 64 of a reference under section 62;

(e) any report of the Commission under section 50 or 65 which has been received by him;

(f) any decision made by him neither to accept an undertaking under paragraph 9 of Schedule 7 nor to make an order under paragraph 11 of that Schedule;

(g) any notice given by him under section 56(1);

(h) any enforcement undertaking accepted by him under paragraph 1 of Schedule 7;

(i) any variation or release of such an undertaking;

(j) any decision made by him as mentioned in paragraph 6(6)(b) of Schedule 7; and

(k) any decision made by him to dispense with the requirements of Schedule 10.

(4) Where any person is under a duty by virtue of subsection (1), (2) or (3) to publish the result of any action taken by that person or any decision made by that person, the person concerned shall, subject to subsections (5) and (6), also publish that person's reasons for the action concerned or (as the case may be) the decision concerned.

(5) 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.

(6) Subsections (4) and (5) shall not apply in relation to any information published under subsection (1)(c).

(7) The Secretary of State shall publish his reasons for--

(a) any decision made by him under section 54(2) or 66(2); or

(b) any decision to make an order under section 58(3) or vary or revoke such an order.

(8) Such reasons may be published after--

(a) in the case of subsection (7)(a), the publication of the decision concerned; and

(b) in the case of subsection (7)(b), the making of the order or of the variation or revocation;

if it is not reasonably practicable to publish them at the same time as the publication of the decision or (as the case may be) the making of the order or variation or revocation.

(9) The Secretary of State shall publish--

(a) the report of the OFT under section 44 in relation to a matter no later than publication of his decision as to whether to make a reference under section 45 in relation to that matter; and

(b) the report of the Commission under section 50 in relation to a matter no later than publication of his decision under section 54(2) in relation to that matter.

(10) The Secretary of State shall publish--

(a) the report of the OFT under section 61 in relation to a matter no later than publication of his decision as to whether to make a reference under section 62 in relation to that matter; and

(b) the report of the Commission under section 65 in relation to a matter no later than publication of his decision under section 66(2) in relation to that matter.

(11) Where the Secretary of State has decided under section 55(2) or 66(6) to accept an undertaking under paragraph 9 of Schedule 7 or to make an order under paragraph 11 of that Schedule, he shall (after the acceptance of the undertaking or (as the case may be) the making of the order) lay details of his decision and his reasons for it, and the Commission's report under section 50 or (as the case may be) 65, before each House of Parliament.

108 Defamation

For the purposes of the law relating to defamation, absolute privilege attaches to any advice, guidance, notice or direction given, or decision or report made, by the OFT, the Commission or the Secretary of State in the exercise of any of their functions under this Part.

Investigation powers

109 Attendance of witnesses and production of documents etc.

(1) The Commission may, for the purpose of any investigation on a reference made to it under this Part, give notice to any person requiring him--

(a) to attend at a time and place specified in the notice; and

(b) to give evidence to the Commission or a person nominated by the Commission for the purpose.

(2) The Commission may, for the purpose of any investigation on a reference made to it under this Part, give notice to any person requiring him--

(a) to produce any documents which--

(i) are specified or described in the notice, or fall within a category of document which is specified or described in the notice; and

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