1(1)To the extent to which an agreement (either on its own or when taken together with another agreement) results, or if carried out would result, in any two enterprises ceasing to be distinct enterprises for the purposes of [F1Part V of the M1Fair Trading Act 1973 (“the 1973 Act”)] [F1Part 3 of the Enterprise Act 2002 (“the 2002 Act”)], the Chapter I prohibition does not apply to the agreement.U.K.
(2)The exclusion provided by sub-paragraph (1) extends to any provision directly related and necessary to the implementation of the merger provisions.
(3)In sub-paragraph (2) “merger provisions” means the provisions of the agreement which cause, or if carried out would cause, the agreement to have the result mentioned in sub-paragraph (1).
(4)[F2Section 65 of the 1973 Act] [F2Section 26 of the 2002 Act] applies for the purposes of this paragraph as if—
(a)in subsection (3) (circumstances in which a person or group of persons may be treated as having control of an enterprise), and
(b)in subsection (4) (circumstances in which a person or group of persons may be treated as bringing an enterprise under their control),
for “may” there were substituted “ must ”.
Textual Amendments
F1Words in Sch. 1 para. 1(1) substituted (20.6.2003 for specified purposes, 29.12.2004 in so far as not already in force) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(50)(a)(i); S.I. 2003/1397, art. 2(1), Sch. (with arts. 3(1), 8); S.I. 2004/3233, art. 2, Sch. (with arts. 3-5)
F2Words in Sch. 1 para. 1(4) substituted (20.6.2003 for specified purposes, 29.12.2004 in so far as not already in force) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(50)(a)(ii); S.I. 2003/1397, art. 2(1), Sch. (with arts. 3(1), 8); S.I. 2004/3233, art. 2, Sch. (with arts. 3-5)
Marginal Citations
2(1)To the extent to which conduct (either on its own or when taken together with other conduct)—U.K.
(a)results in any two enterprises ceasing to be distinct enterprises for the purposes of [F3Part V of the 1973 Act] [F3Part 3 of the 2002 Act]), or
(b)is directly related and necessary to the attainment of the result mentioned in paragraph (a),
the Chapter II prohibition does not apply to that conduct.
(2)[F4Section 65 of the 1973 Act] [F4Section 26 of the 2002 Act] applies for the purposes of this paragraph as it applies for the purposes of paragraph 1.
Textual Amendments
F3Words in Sch. 1 para. 2(1)(a) substituted (20.6.2003 for specified purposes, 29.12.2004 in so far as not already in force) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(50)(b)(i); S.I. 2003/1397, art. 2(1), Sch. (with arts. 3(1), 8); S.I. 2004/3233, art. 2, Sch. (with arts. 3-5)
F4Words in Sch. 1 para. 2(2) substituted (20.6.2003 for specified purposes, 29.12.2004 in so far as not already in force) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(50)(b)(ii); S.I. 2003/1397, art. 2(1), Sch. (with arts. 3(1), 8); S.I. 2004/3233, art. 2, Sch. (with arts. 3-5)
F53U.K.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Textual Amendments
F5Sch. 1 para. 3 repealed (29.12.2003) by Communications Act 2003 (c. 21), s. 411(2), Sch. 19(1) Note 1 (with Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)
4(1)The exclusion provided by paragraph 1 does not apply to a particular agreement if the [F6CMA] gives a direction under this paragraph to that effect.U.K.
(2)If the [F6CMA] is considering whether to give a direction under this paragraph, [F7it] may by notice in writing require any party to the agreement in question to give [F7the [F6CMA]] such information in connection with the agreement as [F7it] may require.
(3)The [F6CMA] may give a direction under this paragraph only as provided in sub-paragraph (4) or (5).
(4)If at the end of such period as may be specified in rules under section 51 a person has failed, without reasonable excuse, to comply with a requirement imposed under sub-paragraph (2), the [F6CMA] may give a direction under this paragraph.
(5)The [F6CMA] may also give a direction under this paragraph if—
[F8(a)it considers that the agreement will, if not excluded, infringe the Chapter I prohibition; and]
(b)the agreement is not a protected agreement.
(6)[F9For the purposes of sub-paragraph (5), an individual exemption is unconditional if no conditions or obligations are imposed in respect of it under section 4(3)(a).]
(7)A direction under this paragraph—
(a)must be in writing;
(b)may be made so as to have effect from a date specified in the direction (which may not be earlier than the date on which it is given).
Textual Amendments
F6Words in Sch. 1 para. 4(1)-(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 53(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)
F7Words in Sch. 1 para. 4(2) substituted (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(50)(c)(ii); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)
F8Sch. 1 para. 4(5)(a) substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 1 para. 48(2)(a)
F9Sch. 1 para. 4(6) ceased to have effect (1.5.2004) by virtue of The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 1 para. 48(2)(b) (with reg. 6(2))
Modifications etc. (not altering text)
C1Sch. 1 para. 4 applied (1.3.2000) by S.I. 2000/310, art. 7
5U.K.An agreement is a protected agreement for the purposes of paragraph 4 if—
[F10(a)the [F11CMA] or (as the case may be) the Secretary of State has published its or his decision not to make a reference F12... under section 22, 33, 45 or 62 of the 2002 Act in connection with the agreement;
(b)the [F11CMA] or (as the case may be) the Secretary of State has made a reference F12... under section 22, 33, 45 or 62 of the 2002 Act in connection with the agreement and [F13the CMA] has found that the agreement has given rise to, or would if carried out give rise to, a relevant merger situation or (as the case may be) a special merger situation;
(c)the agreement does not fall within paragraph (a) or (b) but has given rise to, or would if carried out give rise to, enterprises to which it relates being regarded under section 26 of the 2002 Act as ceasing to be distinct enterprises (otherwise than as the result of subsection (3) or (4)(b) of that section); or
(d)the [F11CMA] has made a reference F12... under section 32 of the Water Industry Act 1991 in connection with the agreement and [F13the CMA] has found that the agreement has given rise to, or would if carried out give rise to, a merger of any two or more water enterprises of the kind to which that section applies.]
Textual Amendments
F10Sch. 1 para. 5(a)(d) substituted (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(50)(d); S.I. 2003/1397, art. 2(1), Sch. (with arts. 3(4) 8)
F11Word in Sch. 1 para. 5 substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 53(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)
F12Words in Sch. 1 para. 5 omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 12(2)(a); S.I. 2014/416, art. 2(1)(f) (with Sch.)
F13Words in Sch. 1 para. 5 substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 12(2)(b); S.I. 2014/416, art. 2(1)(f) (with Sch.)
Modifications etc. (not altering text)
C2Sch. 1 para. 5(a)(b) amended (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 (S.I. 2003/1592), art. 1(1), Sch. 4 para. 15(1)(a)
C3Sch. 1 para. 5(b) amended (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 (S.I. 2003/1592), art. 1(1), Sch. 4 para. 15(1)(b)
C4Sch. 1 para. 5 modified (temp.) (7.12.2004) by The Enterprise Act 2002 (Commencement No. 7 and Transitional Provisions and Savings) Order 2004 (S.I. 2004/3233), art. 5(2)(b)