Competition Citation and commencement 1 This Order may be cited as the Enterprise Act 2002 (Merger Fees and Determination of Turnover) (Amendment) Order 2014 and comes into force on 1st April 2014. Amendments to the Enterprise Act 2002 (Merger Fees and Determination of Turnover) Order 2003 2 The Enterprise Act 2002 (Merger Fees and Determination of Turnover) Order 2003 is amended as follows. 3 For article 2(d) substitute the following— d “merger reference” means a reference by the CMA to its chair under section 22 or 33 of the Act or section 32 of the Water Industry Act 1991 , or a reference by the Secretary of State to the chair of the CMA under section 45 of the Act; and . 4 In article 3— a omit paragraph (a); b in paragraph (b), for “ OFT ” substitute “CMA”; and c in paragraph (d)— i for “OFT” substitute “CMA”; and ii omit “to the Commission”. 5 In article 4— a for paragraph (1) substitute the following— 1 Except where the decision in respect of which a fee is payable under article 3(b) or (c) is made in relation to arrangements or proposed arrangements of which the CMA was given notice under section 96 of the Act, a fee shall not be payable under article 3(b) or (c) where the creation or possible creation of the relevant merger situation depends or would depend on the operation of section 26(3) or (4)(b) of the Act. ; and b in paragraph (2), for the words from “the OFT decides” to the end substitute “the CMA decides pursuant to section 33(2)(b) of the Act that the arrangements concerned are not sufficiently far advanced, or are not sufficiently likely to proceed, to justify the making of a merger reference.” 6 In article 5(1), in the words before sub-paragraph (a), for “article 3(a) to (c)” substitute “article 3(b) or (c)”. 7 In article 6— a for paragraphs (1) and (2) substitute the following— 1 Where the decision in respect of which a fee is payable under article 3(b) or (c) is made in relation to arrangements or proposed arrangements of which the CMA was given notice under section 96 of the Act and the person who gave the notice still exists at the time when the fee is payable under article 9, the fee is payable by the person who gave the notice. 2 In any other case, the fee payable under article 3 is payable by the acquirer. ; and b in paragraph (3)(a), for “OFT’s” substitute “CMA’s”. 8 For article 7 substitute the following— 7 1 In a case in which, by virtue of article 6(1), the obligation to pay the fee under article 3(b) or (c) falls on a person who gave a merger notice under section 96 of the Act, no fee shall be payable if— a that person is the acquirer; b the notified arrangements relate to the enterprise that has been, or will be, taken over by the acquirer; and c the acquirer qualifies as small or medium sized. 2 In any other case, no fee is payable under article 3 where the acquirer qualifies as small or medium sized. 3 But paragraphs (1) and (2) do not apply where the acquirer is an individual. 4 For the purposes of paragraphs (1) and (2) an acquirer qualifies as small or medium sized if— a the acquirer (whether or not it is a company) met, in its most recent financial year before the time when the fee would otherwise become payable, the qualifying conditions to be small specified in section 382(3) to (6) of the Companies Act 2006 or the qualifying conditions to be medium-sized specified in section 465(3) to (6) of that Act; and b where the acquirer is a member of a group as defined in section 474 of the Companies Act 2006 (whether or not the acquirer is a company), that group met, in its most recent financial year before the time when the fee would otherwise become payable, the qualifying conditions to be small specified in section 383(4) to (7) of that Act or the qualifying conditions to be medium-sized specified in section 466(4) to (7) of that Act. 9 In article 8, for “OFT” substitute “CMA”. 10 For article 9 substitute the following— 9 1 In a case falling within article 3(b) or (d), the fee shall be payable when the CMA publishes the merger reference or, as the case may be, publishes its decision that the duty to make such a merger reference does not apply. 2 In a case falling within article 3(c), the fee shall be payable when the Secretary of State publishes the merger reference, or as the case may be, when the Secretary of State’s decision not to make such a merger reference is published. 11 Omit article 10. Transitional provision and savings 12 1 The amendments made by this Order do not affect— a any obligation which arose before 1st April 2014 under article 9 of the Enterprise Act 2002 (Merger Fees and Determination of Turnover) Order 2003 to pay a fee, or b any obligation which arose before that date under article 10 of that Order to repay a fee; and where any such obligation subsisted and had not been discharged immediately before that date the fee in question is payable to or (as the case may be) repayable by the CMA. 2 Paragraphs (3) to (6) apply where a fee has been paid before, on or after 1st April 2014 pursuant to an obligation under the Enterprise Act 2002 (Merger Fees and Determination of Turnover) Order 2003 which arose before that date in respect of the giving of a merger notice under section 96 of the Enterprise Act 2002. 3 In paragraphs (4) to (6) “the notified arrangements” means the proposed arrangements in relation to which that merger notice was given. 4 No fee is payable to the CMA under article 3(b) or (c) of the Enterprise Act 2002 (Merger Fees and Determination of Turnover) Order 2003 where the CMA or (as the case may be) the Secretary of State makes, or decides not to make, a merger reference in relation to the notified arrangements. 5 No fee is payable to the CMA under article 3(b) or (c) of that Order where— a the CMA or (as the case may be) the Secretary of State makes, or decides not to make, a merger reference in relation to the creation, or possible creation, of a relevant merger situation resulting from the carrying into effect of the notified arrangements; and b that reference, or decision not to make a reference, is made within six months of the date when the obligation to pay the fee in respect of the giving of the merger notice arose. 6 The CMA must repay the fee paid in respect of the giving of the merger notice where— a the CMA decides not to make a merger reference because it does not believe that it is or may be the case that the notified arrangements would, if carried into effect, result in the creation of a relevant merger situation; b the CMA rejects the merger notice under section 99(5)(d) of the Enterprise Act 2002 (rejection of merger notice where the notified arrangements are or would result in a concentration with a Community dimension); or c the CMA decides not to make a merger reference because section 22(3)(e) or 33(3)(e) of the Enterprise Act 2002 applies (request to European Commission pursuant to article 22(1) of the EU Merger Regulation). Jenny Willott Parliamentary Under Secretary of State for Employment Relations and Consumer Affairs Department for Business, Innovation and Skills 6th March 2014