1(a)2002 c.40.STATUTORY INSTRUMENTS
2003 No. 1592
COMPETITION
The Enterprise Act 2002 (Protection of Legitimate Interests)
Order 2003
Made ---- 17th June 2003
Coming into force 20th June 2003
Whereas the Secretary of State laid the draft of this Order before Parliament;
And whereas the said draft as so laid has been approved by a resolution of each House of
Parliament;
Now, therefore, the Secretary of State in exercise of the powers conferred on her by sections 68
and 124(2) and (4) of the Enterprise Act 2002 (a), hereby makes the following Order:
Citation, commencement and interpretation
1.—(1) This Order may be cited as the Enterprise Act 2002 (Protection of Legitimate
Interests) Order 2003 and shall come into force on 20th June 2003.
(2) In this Order—
“the Act” means the Enterprise Act 2002;“a European intervention notice” means a notice given by the Secretary of State to the OFT
pursuant to section 67 of the Act;
“public interest consideration” means a consideration which, at the time of the giving of the
European intervention notice concerned, is speciﬁed in section 58 of the Act, or is not sospeciﬁed but, in the opinion of the Secretary of State, ought to be so speciﬁed.
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 resultin the creation of a relevant merger situation, for the purposes of section 68(2)(a) of the Act andthis Order, sections 23 to 32 of the Act (read together with section 34 of the Act and any Ordermade pursuant to that section) shall apply, but subject to the modiﬁcations mentioned inSchedule 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 withparagraphs (2) and (3).2(2) A matter to which a European intervention notice relates is ﬁnally determined if—
(a) the time within which the OFT is to report to the Secretary of State under article 4 has
expired and no such report has been made;
(b) the Secretary of State decides to accept an undertaking or group of undertakings under
paragraph 3 of Schedule 2 instead of making a reference under article 5;
(c) the Secretary of State otherwise decides not to make a reference under article 5;
(d) the Commission cancels such a reference under article 7(1) or article 11(1);
(e) the time within which the Commission is to prepare a report under article 8 and give it to
the Secretary of State has expired and no such report has been prepared and given to theSecretary of State;
(f) the time within which the Secretary of State is to make and publish a decision under
article 12(2) has expired and no such decision has been made and published;
(g) the Secretary of State decides under paragraph (2) of article 12 otherwise than as
mentioned in paragraph (6) of that article;
(h) the Secretary of State decides under paragraph (2) of article 12 as mentioned in
paragraph (6) of that article but decides neither to accept an undertaking underparagraph 9 of Schedule 2 nor to make an order under paragraph 11 of that Schedule; or
(i) the Secretary of State decides under paragraph (2) of article 12 as mentioned in
paragraph (6) of that article and accepts an undertaking under paragraph 9 of Schedule 2or makes an order under paragraph 11 of that Schedule.
(3) The time when a matter to which a European intervention notice relates is ﬁnally
determined is—
(a) in a case falling within paragraph (2)(a), (e) or (f), the expiry of the time concerned;
(b) in a case falling within paragraph (2)(b), the acceptance of the undertaking or group of
undertakings concerned;
(c) in a case falling within paragraph (2)(c), (d) or (g), the making of the decision
concerned;
(d) in a case falling within paragraph (2)(h), the making of the decision neither to accept an
undertaking under paragraph 9 of Schedule 2 nor to make an order under paragraph 11of that Schedule; and
(e) in a case falling within paragraph (2)(i), the acceptance of the undertakings concerned
or (as the case may be) the making of the order concerned.
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—
(a) advice from the OFT on the considerations relevant to the making of a reference under
section 22 or 33 of the Act which are also relevant to the Secretary of State’s decision asto whether to make a reference under article 5; and
(b) a summary of any representations about the case which have been received by the OFT
and which relate to any public interest consideration mentioned in the Europeanintervention notice concerned and which is or may be relevant to the Secretary of State’sdecision as to whether to make a reference under article 5.
(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 thecreation 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 berelevant to the Secretary of State’s decision as to whether to make a reference under article 5.3(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—
(a) has given a European intervention notice in relation to a relevant merger situation; and
(b) has received a report of the OFT under article 4 in relation to the matter.
(2) The Secretary of State may make a reference to the Commission if she believes that it is or
may be the case that—
(a) a European relevant merger situation has been created;
(b) one or more than one public interest consideration mentioned in the European
intervention notice is relevant to a consideration of the European relevant mergersituation concerned; and
(c) taking account only of the relevant public interest consideration or considerations
concerned, the creation of that situation operates or may be expected to operate against
the public interest.
(3) The Secretary of State may make a reference to the Commission if she believes that it is or
may be the case that—
(a) arrangements are in progress or in contemplation which, if carried into effect, will result
in the creation of a European relevant merger situation;
(b) one or more than one public interest consideration mentioned in the European
intervention notice is relevant to a consideration of the European relevant mergersituation concerned; and
(c) taking account only of the relevant public interest consideration or considerations
concerned, the creation of that situation operates or may be expected to operate againstthe public interest.
(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) ofthat 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 noticeconcerned, the Secretary of State shall, in deciding whether to make such a reference, disregardany public interest consideration which is mentioned in the European intervention notice butwhich 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 weeksbeginning with the giving of the European intervention notice concerned, delay deciding whetherto 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—
(a) the paragraph of this article under which it is made;
(b) the date on which it is made; and
(c) the public interest consideration or considerations mentioned in the European
intervention notice concerned which the Secretary of State is not under a duty todisregard by virtue of paragraph (6) and which she believes are or may be relevant to aconsideration of the relevant merger situation concerned.
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.4(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 aEuropean 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 inthe 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 considerationsconcerned, the creation of that situation operates or may be expected to operate against the publicinterest.
(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 publicinterest, decide the following additional questions—
(a) whether action should be taken by the Secretary of State under article 12 for the purpose
of remedying, mitigating or preventing any of the effects adverse to the public interestwhich have resulted from, or may be expected to result from, the creation of theEuropean relevant merger situation concerned;
(b) whether the Commission should recommend the taking of other action by the Secretary
of State or action by persons other than itself and the Secretary of State for the purposeof remedying, mitigating or preventing any of the effects adverse to the public interestwhich have resulted from, or may be expected to result from, the creation of theEuropean relevant merger situation concerned; and
(c) in either case, if action should be taken, what action should be taken and what is to be
remedied, mitigated or prevented.
(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 notunder 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 underarticle 5 may be framed so as to require the Commission to exclude from consideration—
(a) subsection (1) of section 23 of the Act;
(b) subsection (2) of that section; or
(c) one of those subsections if the Commission ﬁnds that the other is satisﬁed.
(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 5may be framed so as to require the Commission to conﬁne its investigation to the supply of goodsor 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 underparagraph (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 thoseenactments 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 referencehad been made under paragraph (3) or (as the case may be) (2) of that article instead of underparagraph (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 immediatelybefore 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.5(7) The undertaking or order shall, so far as applicable, continue in force as if it were—
(a) in the case of an undertaking or order which relates to a reference under paragraph (2) of
article 5, accepted or made in relation to a reference made under paragraph (3) of that
article; and
(b) in the case of an undertaking or order which relates to a reference made under paragraph
(3) of that article, accepted or made in relation to a reference made under paragraph (2)of that article;
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 permittedby virtue of article 8 within which the report of the Commission under that article is to beprepared 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—
(a) the decisions of the Commission on the questions which it is required to answer by
virtue of article 6;
(b) its reasons for its decisions; and
(c) such information as the Commission considers appropriate for facilitating a proper
understanding of those questions and of its reasons for its decisions.
(3) The Commission shall carry out such investigations as it considers appropriate for the
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 arespecial reasons why the report cannot be prepared and given to the Secretary of State within thatperiod.
(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 orwithout a reasonable excuse) to comply with any requirement of a notice under section 109 of theAct.
(4) In paragraph (3) “relevant person” means—
(a) any person carrying on any of the enterprises concerned;
(b) any person who (whether alone or as a member of a group) owns or has control of any
such person; or
(c) any ofﬁcer, employee or agent of any person mentioned in sub-paragraph (a) or (b).
(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 controlof it.
(6) An extension under paragraph (2) or (3) shall come into force when published in
accordance with article 14.6(7) An extension under paragraph (3) shall continue in force until—
(a) the person concerned provides the information or documents to the satisfaction of the
Commission or (as the case may be) appears as a witness in accordance with therequirements of the Commission; or
(b) the Commission publishes its decision to cancel the extension.
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 beextended 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 thecase may be) further extended, shall, subject to paragraphs (4) and (5), be calculated by taking theperiod being extended and adding to it the period of the extension (whether or not those periodsoverlap in time).
(4) Paragraph (5) applies where—
(a) the period within which the report under article 8 is to be prepared and given to the
Secretary of State is further extended;
(b) the further extension and at least one previous extension is made under article 9(3); 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.
(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—
(a) the European intervention notice concerned mentions a public interest consideration
which was not ﬁnalised on the giving of that notice or public interest considerationswhich, at the time, were not ﬁnalised;
(b) no other public interest consideration is mentioned in the notice;
(c) at least 24 weeks has elapsed since the giving of the notice; and
(d) the public interest consideration mentioned in the notice has not been ﬁnalised within
that period of 24 weeks or (as the case may be) none of the public interest considerationsmentioned in the notice has been ﬁnalised within that period of 24 weeks.
(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 Commissionshall not give its report to the Secretary of State under article 8 in relation to that referenceunless—
(a) the period of 24 weeks beginning with the giving of the European intervention notice
has expired; or
(b) the public interest consideration has been ﬁnalised.
(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 theEuropean intervention notice and has not been ﬁnalised within the period of 24 weeks beginningwith 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 haveregard in its report.7Decision 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 interestconsideration 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 relevantmerger situation has been created or whether arrangements are in progress or in contemplationwhich, 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—
(a) a European relevant merger situation has been created or arrangements are in progress
or in contemplation which, if carried into effect, will result in the creation of a Europeanrelevant merger situation;
(b) at least one public interest consideration which is mentioned in the European
intervention notice concerned is relevant to a consideration of the European relevantmerger situation concerned; and
(c) taking account only of the relevant public interest consideration or considerations
concerned, the creation of that situation operates or may be expected to operate againstthe public interest;
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 tothe public interest which have resulted from, or may be expected to result from, the creation of theEuropean 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—
(a) Saturday, Sunday, Good Friday and Christmas Day; and
(b) any day which is a bank holiday in England and Wales.
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—
(a) any cancellation made by it under article 7(1) of a reference under article 5;
(b) any extension by it under article 9 of the period within which a report under article 8 is to
be prepared and published;
(c) any decision made by it under article 9(7)(b) to cancel such an extension; and
(d) any decision made by it under article 7(4) to 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) ofthat article.8(2) The Secretary of State shall publish—
(a) any European intervention notice given by her;
(b) any report of the OFT under article 4 which has been received by her;
(c) any reference made by her under article 5 or any decision made by her not to make a
reference;
(d) any variation by her under article 7 of a reference under article 5;
(e) any report of the Commission under article 8 which has been received by her;
(f) any decision made by her neither to accept an undertaking under paragraph 9 of
Schedule 2 nor to make an order under paragraph 11 of that Schedule;
(g) any enforcement undertaking accepted by her under paragraph 1 of Schedule 2;(h) any variation or release of such an undertaking;
(i) any decision made by her as mentioned in paragraph 6(6)(b) of Schedule 2; and(j) any decision to dispense with the requirements of Schedule 10 of the Act.
(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 thecase 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—
(a) the report of the OFT under article 4 in relation to a matter no later than publication of
her decision as to whether to make a reference under article 5 in relation to that matter;and
(b) the report of the Commission under article 8 in relation to a matter no later than
publication of her decision under article 12(2) in relation to that matter.
(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, sheshall (after the acceptance of the undertaking or (as the case may be) the making of the order) laydetails of her decision and her reasons for it, and the Commission’s report under article 8, beforeeach 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 20039SCHEDULE 1 Article 2
MODIFICATIONS TO SECTIONS 23 TO 32 OF THE ACT
Sections 23 to 32 of the Act shall apply as if—
(a) references in those sections to “the decision-making authority” were references to the
OFT, the Commission or (as the case may be) the Secretary of State;
(b) in section 23(1) and (2) the words “For the purposes of this Part,” were omitted;
(c) in section 23(9) the words “For the purposes of this Chapter,” were omitted;
(d) for section 23(9)(a) there were substituted—
“(a) in relation to the giving of a European intervention notice, the time when
the notice is given;
(aa) in relation to the making of a report by the OFT under article 4 of the
Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003, thetime of the making of the report;
(ab) in the case of a reference which is treated as having been made under
article 5(2) of the Enterprise Act 2002 (Protection of LegitimateInterests) Order 2003 by virtue of article 7(4) of that Order, such time asthe Commission may determine; and”;
(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—
“(5A) The Secretary of State may by notice to the persons carrying on the
enterprises which have or may be ceased to be distinct enterprisesextend the four month period mentioned in section 24(1)(a) or (2)(b) if,by virtue of article 5(7) of the Enterprise Act 2002 (Protection ofLegitimate Interests) Order 2003 or paragraph 3(5) of Schedule 2 to thatOrder, he decides to delay a decision as to whether to make a referenceunder article 5 of that Order.
(5B) An extension under subsection (5A) shall be for the period of the
delay.”;
(j) in section 25(10)(b) after word “(4)” there were inserted “, (5A)”;
(k) the reference in section 25(12) to one extension were a reference to one extension by the
OFT and one extension by the Secretary of State;
(l) the powers to extend time-limits under section 25 and the power to request information
under section 31(1) were not exercisable by the OFT or the Secretary of State before thegiving of a European intervention notice;
(m) in section 26(1) the words “For the purposes of this Part” were omitted;
(n) in section 28(2) the words from “For the purposes” to “121(4)(c)(ii))” were omitted;(o) in subsection (1) of section 31 for the words “section 22” there were substituted “article
5(2) of the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003” and, inthe application of that subsection to the OFT, for the word “deciding” there weresubstituted “enabling the Secretary of State to decide”;
(p) in the case of the giving of European intervention notices, the references in sections 23
to 29 to the making of a reference or a reference were, so far as necessary, references tothe giving of a European intervention notice or a European intervention notice; and
(q) the references to the OFT in section 32(2)(a) to (c) and (3) were construed in accordance
with the above modiﬁcations.10SCHEDULE 2 Article 13
ENFORCEMENT ACTION IN EUROPEAN INTERVENTION NOTICE CASES
Pre-emptive undertakings and orders
1 (1) Sub-paragraph (2) applies where a European intervention notice is in force.
(2) The Secretary of State may, for the purposes of preventing pre-emptive action, accept
from such of the parties concerned as she considers appropriate undertakings to take
such action as she considers appropriate.
(3) An undertaking under this paragraph—
(a) shall come into force when accepted;
(b) may be varied or superseded by another undertaking; and
(c) may be released by the Secretary of State.
(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 2or 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 inforce.
(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 Europeanrelevant 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 underthis 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 thetaking of any action under this Order which may be justiﬁed by the Secretary of State’sdecisions 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—
(a) prohibit or restrict the doing of things which the Secretary of State considers
would constitute pre-emptive action;
(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 anyactivities (on such terms and with such powers as may be speciﬁed or describedin the order) or in any other manner;
(d) do anything which may be done by virtue of paragraph 19 of Schedule 8 to the
Act.
(3) An order under this paragraph—
(a) shall come into force at such time as is determined by or under the order; and
(b) may be varied or revoked by another order.
(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 or3 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 mergersituation which has been, or may have been, created.11(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 thisparagraph.
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 interestwhich have or may have resulted, or which may be expected to result, from the creationof the European relevant merger situation concerned accept from such of the partiesconcerned as she considers appropriate undertakings to take such action as sheconsiders 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 considerationmentioned in the European intervention notice concerned has not been ﬁnalised and theperiod 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 beingﬁnalised within the period of 24 weeks beginning with the giving of the Europeanintervention notice concerned.
(6) A delay under sub-paragraph (5) shall not extend beyond—
(a) the time when the public interest consideration is ﬁnalised; or
(b) if earlier, the expiry of the period of 24 weeks mentioned in that sub-paragraph.
(7) An undertaking under this paragraph—
(a) shall come into force when accepted;
(b) may be varied or superseded by another undertaking; or
(c) may be released by the Secretary of State.
(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 5or 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 underthis 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—
(a) the Secretary of State has accepted an undertaking or group of undertakings
under paragraph 3; and
(b) the European relevant merger situation is the situation by reference to which the
undertaking or group of undertakings was accepted.
(2) Sub-paragraph (1) does not prevent the making of a reference if material facts about
relevant arrangements or transactions, or relevant proposed arrangements ortransactions, 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 whichthe enterprises concerned ceased or may have ceased, or may cease, to be distinctenterprises.12(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—
(a) an undertaking accepted by her under paragraph 3 has not been, is not being or
will not be fulﬁlled; or
(b) in relation to an undertaking accepted by her under that paragraph, information
which was false or misleading in a material respect was given to her or the OFTby the person giving the undertaking before she decided to accept theundertaking.
(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—
(a) anything permitted by Schedule 8 to the Act; 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 inprogress 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 anyactivities (on such terms and with such powers as may be speciﬁed or describedin the order) or in any other manner;
(d) do anything which may be done by virtue of paragraph 19 of Schedule 8 to the
Act.
(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; or13(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 her in relation to varying or revoking an order under thisparagraph.
Statutory restrictions following reference under article 5
7 (1) Sub-paragraphs (2) and (3) apply where—
(a) a reference has been made under article 5 but not ﬁnally determined; and
(b) no undertakings under paragraph 1 are in force in relation to the European
relevant 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
(c) transfer the ownership or control of any enterprises to which the reference
relates.
(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 ofit.
(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—
(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
(c) a person carrying on business in the United Kingdom.
(8) For the purpose of this paragraph a reference under article 5 is ﬁnally determined if—
(a) the time within which the Commission is to prepare a report under article 8 in
relation to the reference and give it to the Secretary of State has expired and nosuch report has been so prepared and given;
(b) the Commission decides to cancel the reference under article 11(1);
(c) the time within which the Secretary of State is to make and publish a decision
under article 12(2) has expired and no such decision has been made andpublished;
(d) the Secretary of State decides under paragraph (2) of article 12 otherwise than
as mentioned in paragraph (6) of that article;
(e) the Secretary of State decides under paragraph (2) of article 12 as mentioned in
paragraph (6) of that article but decides neither to accept an undertaking underparagraph 9 of this Schedule nor to make an order under paragraph 11 of thisSchedule; or14(f) the Secretary of State decides under paragraph (2) of article 12 as mentioned in
paragraph (6) of that article and accepts an undertaking under paragraph 9 ofthis Schedule or makes an order under paragraph 11 of this Schedule.
(9) For the purposes of this paragraph the time when a reference under article 5 is ﬁnally
determined is—
(a) in a case falling within sub-paragraph (8)(a) or (c), the expiry of the time
concerned;
(b) in a case falling within sub-paragraph (8)(b) or (d), the making of the decision
concerned;
(c) in a case falling within sub-paragraph (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 (8)(f), the acceptance of the undertaking
concerned or (as the case may be) the making of the order concerned.
(10) 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
(c) any person associated with any person falling within paragraph (a) or any
subsidiary of any person so associated.
8 (1) Sub-paragraph (2) applies where—
(a) a reference has been made under article 5, and
(b) no undertakings under paragraph 1 are in force in relation to the European
relevant merger situation concerned and no orders under paragraph 2 are inforce 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 anyenterprise to which the reference relates is carried on by or under the control of thatcompany.
(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
(c) a person carrying on business in the United Kingdom.
(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 thereference is ﬁnally determined;
“relevant person” means—15(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 article 5 is ﬁnally determined if—
(a) the Commission cancels the reference under article 7(1) or article 11(1);
(b) the time within which the Commission is to prepare a report under article 8 in
relation to the reference and give it to the Secretary of State has expired and nosuch report has been so prepared and given;
(c) the time within which the Secretary of State is to make and publish a decision
under article 12(2) has expired and no such decision has been made andpublished;
(d) the Secretary of State decides under paragraph (2) of article 12 otherwise than
as mentioned in paragraph (6) of that article;
(e) the Secretary of State decides under paragraph (2) of article 12 as mentioned in
paragraph (6) of that article but decides neither to accept an undertaking underparagraph 9 of this Schedule nor to make an order under paragraph 11 of thisSchedule; or
(f) the Secretary of State decides under paragraph (2) of article 12 as mentioned in
paragraph (6) of that article and accepts an undertaking under paragraph 9 ofthis Schedule or makes an order under paragraph 11 of this Schedule.
(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—
(a) in a case falling within sub-paragraph (7)(a) or (d), the making of the decision
concerned;
(b) in a case falling within sub-paragraph (7)(b) or (c), the expiry of the time
concerned;
(c) in a case falling within sub-paragraph (7)(e), the making of the decision neither
to accept an undertaking under paragraph 9 of this Schedule nor to make anorder under paragraph 11 of this Schedule; and
(d) in a case falling within sub-paragraph (7)(f) the acceptance of the undertaking
concerned or (as the case may be) the making of the order concerned.
(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 78in 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—
(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 article 12(6) to (8) accept, from such
persons as she considers appropriate, undertakings to take action speciﬁed or describedin the undertakings.16(2) An undertaking under this paragraph—
(a) shall come into force when accepted;
(b) may be varied or superseded by another undertaking; and
(c) may be released by the Secretary of State.
(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 intoforce 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—
(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 her in relation to varying or releasing an undertaking underthis paragraph.
10 (1) Sub-paragraph (2) applies where the Secretary of State considers that—
(a) an undertaking accepted by her under paragraph 9 has not been, is not being or
will not be fulﬁlled; or
(b) in relation to an undertaking accepted by her under that paragraph, information
which was false or misleading in a material respect was given to her or the OFTby the person giving the undertaking before she decided to accept theundertaking.
(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—
(a) anything permitted by Schedule 8 to the Act; 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 article 12(7), make an order under this
paragraph.
(2) An order under this paragraph may contain—
(a) anything permitted by Schedule 8 to the Act; 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.17(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.
SCHEDULE 3 Article 15
OTHER PROVISIONS OF THE ACT APPLICABLE TO THE ORDER
1 (1) The following sections of Part 3 of the Act shall apply, with the modiﬁcations
mentioned in sub-paragraphs (2) to (27) below, for the purposes of this Order—
(a) section 69 (newspaper mergers);
(b) section 86 (enforcement orders: general provisions);
(c) section 87 (delegated power of directions);
(d) section 88 (contents of certain enforcement orders);
(e) section 89 (subject-matter of undertakings);
(f) section 91 (register of undertakings and orders);
(g) section 92 (duty of OFT to monitor undertakings and orders);(h) section 93 (further role of OFT in relation to undertakings and orders);
(i) section 94 (rights to enforce undertakings and orders);(j) section 95 (rights to enforce statutory restrictions);
(k) section 103 (duty of expedition in relation to references);
(l) section 104 (certain duties of relevant authorities to consult);
(m) section 105 (general information duties of OFT and Commission);
(n) section 108 (defamation);(o) section 109 (attendance of witnesses and production of documents etc.);(p) section 110 (enforcement of powers under section 109: general);(q) section 111 (penalties);
(r) section 112 (penalties: main procedural requirements);
(s) section 113 (payments and interest by instalments);
(t) section 114 (appeals in relation to penalties);
(u) section 115 (recovery of penalties);(v) section 116 (statement of policy);
(w) section 117 (false or misleading information);
(x) section 118 (excisions from reports);(y) section 119 (minority reports of Commission);
(z) section 120 (review of decisions under Part 3);
(aa) section 124 (orders and regulations under Part 3);
(bb) section 125 (offences by bodies corporate);
(cc) section 126 (service of documents);
(dd) section 127 (associated persons);
(ee) section 128 (supply of services and market for services etc.); and
(ff) section 129 (other interpretation provisions).
(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 LegitimateInterests) Order 2003”.18(3) Section 86 shall apply as if—
(a) subsection (5) were omitted; and
(b) in subsection (6)—
(i) the words from “section 72” to “under”, where it appears for the
second time, were omitted; and
(ii) for the words “Schedule 7” there were substituted “Schedule 2 to the
Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003”.
(4) Section 88 shall apply as if in subsection (1)—
(a) the words from “section 75” to “under” were omitted; and
(b) for the words “Schedule 7” there were substituted “Schedule 2 to the Enterprise
Act 2002 (Protection of Legitimate Interests) Order 2003”.
(5) Section 89 shall apply as if in subsection (2)—
(a) the words from “section 71” to “under”, where it appears for the second time,
were omitted; and
(b) for the words “Schedule 7” there were substituted “Schedule 2 to the Enterprise
Act 2002 (Protection of Legitimate Interests) Order 2003”.
(6) Section 91 shall apply as if—
(a) in subsections (1), (3)(a) and (b) for the words “this Part” there were substituted
“the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003”;
(b) in subsection (3)(d)—
(i) the words from “by the Commission” to “78(2) or” were omitted; and
(ii) for the words “Schedule 7” there were substituted “Schedule 2 to the
Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003”;and
(c) in subsection (5)—
(i) the words “Commission and the” were omitted; and
(ii) for the words “them” in all three places where they appear there were
substituted “him”.
(7) Section 92 shall apply as if—
(a) in subsections (1)(b), (3)(f) and (4)(f)—
(i) the words from “in sections 77(2)” to “78(2) and” were omitted; and
(ii) for the words “Schedule 7” there were substituted “Schedule 2 to the
Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003”;
(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—
(a) subsection (1)(a) were omitted;
(b) in subsections (1)(b), (2) and (4) for the words “Schedule 7” there were
substituted “Schedule 2 to the Enterprise Act 2002 (Protection of LegitimateInterests) Order 2003”;19(c) in subsection (2) the words “Commission or (as the case may be) the” were
omitted; and
(d) in subsections (2) and (4) the words “section 80 or 82 or (as the case may be)”
were omitted.
(9) Section 94 shall apply as if—
(a) subsection (7) were omitted;
(b) in subsection (8) for the words “Schedule 7” there were substituted “Schedule 2
to the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003”;
(c) in subsection (9) for the words “to (8)” there were substituted “and (8)”.
(10) Section 95 shall apply as if—
(a) in subsections (1), (3) and (6)—
(i) the words from “section 77(2)” to “78(2) or” were omitted; and
(ii) for the words “Schedule 7” there were substituted “Schedule 2 to the
Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003”;
(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—
(a) subsection (1) were omitted; and
(b) in subsection (2) for the words “section 45 or 62” there were substituted “article
5 of the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003”.
(12) Section 104 shall apply as if—
(a) in subsection (5) for the words “this Part” there were substituted “the Enterprise
Act 2002 (Protection of Legitimate Interests) Order 2003”;
(b) in subsection (6) the words “the OFT,” where they appear for the ﬁrst time were
omitted;
(c) paragraph (a) in the deﬁnition of “relevant decision” in subsection (6) were
omitted;
(d) in paragraph (b) in the deﬁnition of “relevant decision” in subsection (6), for the
words from “section 35(1)” to “63” there were substituted “article 6 of theEnterprise Act 2002 (Protection of Legitimate Interests) Order 2003”;
(e) in paragraph (c)(i) in the deﬁnition of “relevant decision” in subsection (6), for
the words “section 45 or 62” there were substituted “article 5 of the EnterpriseAct 2002 (Protection of Legitimate Interests Order) 2003”; and
(f) in paragraph (c)(ii) in the deﬁnition of “relevant decision” in subsection (6), for
the words “section 49 or (as the case may be) 64” there were substituted “article7 of the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003”.
(13) Section 105 shall apply as if—
(a) in subsection (1)—
(i) for the words from “so as to enable” to “44 or 61” there were
substituted “so as to make a report under article 4 of the Enterprise Act2002 (Protection of Legitimate Interests) Order 2003”; and20(ii) for the words from “relevant merger situation” to the end of that
subsection there were substituted “European relevant merger situationconcerned”;
(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 LegitimateInterests) 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 ofLegitimate Interests) Order 2003, or, if no such report is given within the periodpermitted for that purpose by that Order, the latest day on which the report may begiven”.
(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) Order2003”.
(19) Section 118 shall apply as if—
(a) in subsection (1)(a) for the words “section 44 or 61” there were substituted
“article 4 of the Enterprise Act 2002 (Protection of Legitimate Interests) Order2003”;
(b) in subsection (1)(b) for the words “section 50 or 65” there were substituted
“article 8 of the Enterprise Act 2002 (Protection of Legitimate Interests) Order2003”; and
(c) in subsection (5) for the words “sections 38(4) and 107(11)” there were
substituted “article 14(8) of the Enterprise Act 2002 (Protection of LegitimateInterests) Order 2003”.
(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—
(a) in subsections (1) and (2)(b) for the words “this Part” there were substituted
“the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003”; and
(b) in subsection (1) for the words “relevant merger situation or a special merger
situation” there were substituted “European relevant merger situation”.
(22) Section 124 shall apply as if—
(a) in subsections (1) and (2) for the words “this Part” there were substituted “the
Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003”;
(b) subsections (3) and (4) and (6) to (10) were omitted; and
(c) for subsection (5) there were substituted—
“(5) An order made by the Secretary of State under section 28, 111(4) or
(6) or 114(3)(b) or (4)(b) as applied by the Enterprise Act 2002 (Protectionof Legitimate Interests) Order 2003, or under Schedule 2 to that Order shallbe subject to annulment in pursuance of a resolution of either House ofParliament.”.21(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) Order2003”.
(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) Order2003”.
(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 LegitimateInterests) 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 ofLegitimate 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 ofLegitimate 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—
(a) Schedule 8 (provision that may be contained in certain enforcement orders);
and
(b) Schedule 10 (procedural requirements for certain enforcement undertakings
and orders).
(2) Schedule 8 shall apply as if—
(a) in paragraph 1 for the words “this Part and Part 4” there were substituted “the
Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003”;
(b) in paragraph 14—
(i) the words “an order under section 75, 83, 84, 160 or 161, or” were
omitted; and
(ii) for the words “Schedule 7” there were substituted “Schedule 2 to the
Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003”;and
(c) in paragraph 24 for paragraphs (a) to (c) there were substituted “the Secretary of
State”.
(3) Schedule 10 shall apply as if—
(a) in paragraphs 1(a) and 6(a)—
(i) the words “section 73 or 82 or” were omitted; and
(ii) for the words “Schedule 7” there were substituted “Schedule 2 to the
Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003”;
(b) in paragraphs 1(b) and 6(b)—
(i) the words “section 75, 83 or 84 or” were omitted; and
(ii) for the words “Schedule 7” there were substituted “Schedule 2 to the
Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003”;
and
(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.22SCHEDULE 4 Article 16
CONSEQUENTIAL AMENDMENTS
Statutory Instruments Act 1946 (c.36)
1 The Statutory Instruments Act 1946 shall apply in relation to any regulations or orders
made by virtue of this Order as if they were made under powers conferred by an Act ofParliament.
Registered Designs Act 1949 (c.88)
2 In section 11AB of the Registered Designs Act 1949 (powers exercisable following
merger and market investigations)—
(a) the reference in subsection (1)(a) to section 66(6) of the Enterprise Act 2002
shall have effect as if it included a reference to article 12(7) of the EnterpriseAct 2002 (Protection of Legitimate Interests) Order 2003;
(b) the reference in subsection (1)(a) to paragraph 5(2) or 10(2) of Schedule 7 to the
Enterprise Act 2002 shall have effect as if it included a reference to paragraph5(2) or 10(2) of Schedule 2 to the Enterprise Act 2002 (Protection of LegitimateInterests) Order 2003;
(c) the reference in subsection (7) to section 63 of the Enterprise Act 2002 shall
have effect as if it included a reference to article 6 of the Enterprise Act 2002(Protection of Legitimate Interests) Order 2003;
(d) the reference in subsection (7) to section 66 of the Enterprise Act 2002 shall
have effect as if it included a reference to article 12 of the Enterprise Act 2002(Protection of Legitimate Interests) Order 2003; and
(e) the reference in subsection (8) to Part 3 shall have effect as if it included a
reference to the Enterprise Act 2002 (Protection of Legitimate Interests) Order2003.
Patents Act 1977 (c.37)
3 (1) In section 50A of the Patents Act 1977 (powers exercisable following merger and
market investigations)—
(a) the reference in subsection (1)(a) to section 66(6) of the Enterprise Act 2002
shall have effect as if it included a reference to article 12(7) of the EnterpriseAct 2002 (Protection of Legitimate Interests) Order 2003;
(b) the reference in subsection (1)(a) to paragraph 5(2) or 10(2) of Schedule 7 to the
Enterprise Act 2002 shall have effect as if it included a reference to paragraph5(2) or 10(2) of Schedule 2 to the Enterprise Act 2002 (Protection of LegitimateInterests) Order 2003;
(c) the reference in subsection (6) to section 63 of the Enterprise Act 2002 shall
have effect as if it included a reference to article 6 of the Enterprise Act 2002(Protection of Legitimate Interests) Order 2003;
(d) the reference in subsection (6) to section 66 of the Enterprise Act 2002 shall
have effect as if it included a reference to article 12 of the Enterprise Act 2002(Protection of Legitimate Interests) Order 2003; and
(e) the reference in subsection (7) to Part 3 shall have effect as if it included a
reference to the Enterprise Act 2002 (Protection of Legitimate Interests) Order2003.
(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 referenceto 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 the23Enterprise 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) Order2003.
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 ofSchedule 7 to the Enterprise Act 2002 shall have effect as if it included a reference toparagraph 5, 10 or 11 of Schedule 2 to the Enterprise Act 2002 (Protection of LegitimateInterests) 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 ofSchedule 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)—
(a) the reference in subsection (1) to—
(i) section 66(6) of the Enterprise Act 2002 shall have effect as if it
included a reference to article 12(7) of the Enterprise Act 2002(Protection of Legitimate Interests) Order 2003; and
(ii) paragraph 5(2) or 10(2) of Schedule 7 to the Enterprise Act 2002 shall
have effect as if it included a reference to paragraph 5(2) or 10(2) ofSchedule 2 to the Enterprise Act 2002 (Protection of LegitimateInterests) Order 2003; and
(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 paragraphs5, 10 and 11 of Schedule 2 to the Enterprise Act 2002 (Protection of LegitimateInterests) Order 2003.
(2) In section 238 of the Copyright, Designs and Patents Act 1988 (powers exercisable for
protection of the public interest)—
(a) the reference in subsection (1) to—
(i) section 66(6) of the Enterprise Act 2002 shall have effect as if it
included a reference to article 12(7) of the Enterprise Act 2002(Protection of Legitimate Interests) Order 2003; and
(ii) paragraph 5(2) or 10(2) of Schedule 7 to the Enterprise Act 2002 shall
have effect as if it included a reference to paragraph 5(2) or 10(2) ofSchedule 2 to the Enterprise Act 2002 (Protection of LegitimateInterests) Order 2003; and
(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 paragraphs5, 10 and 11 of Schedule 2 to the Enterprise Act 2002 (Protection of LegitimateInterests) Order 2003.
(3) In Schedule 2A to the Copyright, Designs and Patents Act 1988, in paragraph 17
(powers exercisable in consequence of competition report)—
(a) the reference in sub-paragraph (1) to—
(i) section 66(6) of the Enterprise Act 2002 shall have effect as if it
included a reference to article 12(7) of the Enterprise Act 2002(Protection of Legitimate Interests) Order 2003; and
(ii) paragraph 5(2) or 10(2) of Schedule 7 to the Enterprise Act 2002 shall
have effect as if it included a reference to paragraph 5(2) or 10(2) ofSchedule 2 to the Enterprise Act 2002 (Protection of LegitimateInterests) Order 2003; and24(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 toparagraphs 5, 10 and 11 of Schedule 2 to the Enterprise Act 2002 (Protection ofLegitimate 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 EnterpriseAct 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) toparagraph 5, 10 or 11 of Schedule 7 to the Enterprise Act 2002 shall have effect as if itincluded 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 ofSchedule 7 to the Enterprise Act 2002 shall have effect as if it included a reference toparagraph 5, 10 or 11 of Schedule 2 to the Enterprise Act 2002 (Protection of LegitimateInterests) 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 or11 of Schedule 7 to the Enterprise Act 2002 shall have effect as if it included a referenceto paragraph 5, 10 or 11 of Schedule 2 to the Enterprise Act 2002 (Protection ofLegitimate 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 EnterpriseAct 2002 shall have effect as if it included a reference to paragraph 5, 10 or 11 ofSchedule 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 itincluded 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) toparagraph 5, 10 or 11 of Schedule 7 to the Enterprise Act 2002 shall have effect as if itincluded 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 of25Schedule 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 LegitimateInterests) Order 2003.
Competition Act 1998 (c.41)
15 (1) In Schedule 1 to the Competition Act 1988 (exclusions: mergers and concentrations)—
(a) the reference in paragraph 5(a) and (b) to section 62 of the Enterprise Act 2002
shall have effect as if it included a reference to article 5 of the Enterprise Act2002 (Protection of Legitimate Interests) Order 2003; and
(b) the reference in paragraph 5(b) to a special merger situation shall have effect as
if it included a reference to a European relevant merger situation.
(2) In Schedule 7 to the Competition Act 1998 (the Competition Commission)—
(a) the reference in paragraph 15(8) to section 64(1) of the Enterprise Act 2002
shall have effect as if it included a reference to article 7(1) of the Enterprise Act2002 (Protection of Legitimate Interests) Order 2003;
(b) in paragraph 19A(9) the reference in the deﬁnition of “merger reference group”
to section 62 of the Enterprise Act 2002 shall have effect as if it included areference to article 5 of the Enterprise Act 2002 (Protection of LegitimateInterests) Order 2003;
(c) the reference in paragraph 20(4) to Part 3 of the Enterprise Act 2002 shall have
effect as if it included a reference to the Enterprise Act 2002 (Protection ofLegitimate Interests) Order 2003;
(d) the reference in paragraph 20(4)(a) and (b) to—
(i) section 63 of that Act shall have effect as if it included a reference to
article 6 of the Enterprise Act 2002 (Protection of LegitimateInterests) Order 2003; and
(ii) a special merger situation shall have effect as if it included a reference
to a European relevant merger situation; and
(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 mergerreferences.
(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 thedeﬁnition of “merger investigation” to section 62 of the Enterprise Act 2002 shall haveeffect as if it included a reference to article 5 of the Enterprise Act 2002 (Protection ofLegitimate 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 theEnterprise Act 2002 shall have effect as if it included a reference to paragraph 5, 10 or11 of Schedule 2 to the Enterprise Act 2002 (Protection of Legitimate Interests) Order2003.
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 EnterpriseAct 2002 shall have effect as if it included a reference to paragraph 5, 10 or 11 ofSchedule 2 to the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003.26(a)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 commonmarket regarding products which are not intended for speciﬁcally military purposes”.EXPLANATORY NOTE
(This note is not part of the Order)
Under the European Merger Regulations (ECMR) (Council Regulation (EEC) No. 4064/89 of
21st December 1989 on the control of concentrations between undertakings as amended byCouncil Regulation (EC) No. 1310/97 of 30th June 1997), if a merger satisﬁes certain
jurisdictional thresholds, that is, it is a concentration with a “Community dimension”, the
European Commission (EC) has sole jurisdiction over competition issues and a Member State isprecluded from applying its own competition laws (unless a Member State makes a request forthe case to be referred back to it for consideration under domestic competition law pursuant toArticle 9 of the ECMR and this is agreed to by the EC, or if a Member State invokes Article296(1)(b) of the EC Treaty (a)).
However, notwithstanding the EC’s sole jurisdiction on competition in such cases, Member
States may take appropriate measures to protect legitimate interests so long as they arecompatible with the general principles and other provisions of Community law. Public security,plurality of the media and prudential rules are legitimate interests under the ECMR. In addition,other public interests may be invoked which have been communicated to and recognised by theEC pursuant to Article 21(3) of the ECMR.
Section 67 of the Enterprise Act 2002 (EA 2002) provides a mechanism for the Secretary of State
to protect legitimate interests where the EC has sole jurisdiction of competition issues. Thatsection enables the Secretary of State to serve a “European intervention notice” if she suspectsthat a relevant merger situation (as deﬁned in section 23 of the EA 2002) has been, or will be,created; the merger is a concentration with a Community dimension and she is consideringwhether to take appropriate measures to protect legitimate interests as permitted under theECMR. She must, however, believe that one or more of the public interest considerationsspeciﬁed (or if not speciﬁed, she thinks ought to be speciﬁed) in section 58 of the EA 2002 isrelevant. Currently, only national security (which includes public security) is speciﬁed in section58 EA 2002, but other public interest considerations may be speciﬁed by an Order subject to theafﬁrmative resolution procedure or by other primary legislation. In relation to the recognisedwater comparator legitimate interest, this interest is protected by the special procedure in theWater Industry Act 1991.
This Order provides for the taking of action by the Secretary of State where a European
intervention notice has been given so as to remedy the adverse public interest effects which haveresulted from, or may be expected to result from, the creation of a European relevant mergersituation—that is where the relevant merger situation is also a concentration with a Communitydimension under the ECMR.
The Order follows the procedures set out in the public interest and special public interest schemes
of the EA 2002 with appropriate modiﬁcations and many of the other provisions of Part 3 of the
EA 2002 are applied with modiﬁcations where relevant. The Order makes provision for when aEuropean intervention notice comes into force; imposes an obligation on the OFT to produce areport where such a European intervention notice has been given; makes provision for theSecretary of State to refer the matter to the Competition Commission and imposes on them an
obligation to report on certain matters within certain time limits. It also enables the Secretary ofState to take enforcement action in such European intervention cases and these enforcementprovisions mirror to a large extent the public interest and special public interest enforcementregime in Schedule 7 to the EA 2002.STATUTORY INSTRUMENTS
2003 No. 1592
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