Enterprise Act 2002

Pre-emptive undertakings and orders

1 (1) Sub-paragraph (2) applies where an intervention notice or special intervention notice is in force.

(2) The Secretary of State may, for the purpose of preventing pre-emptive action, accept from such of the parties concerned as he considers appropriate undertakings to take such action as he considers appropriate.

(3) Sub-paragraph (4) applies where an intervention notice is in force.

(4) The Secretary of State may, for the purpose of preventing pre-emptive action, adopt an undertaking accepted by the OFT under section 71 if the undertaking is still in force when the Secretary of State adopts it.

(5) An undertaking adopted under sub-paragraph (4)—

(a) shall continue in force, in accordance with its terms, when adopted;

(b) may be varied or superseded by an undertaking under this paragraph; and

(c) may be released by the Secretary of State.

(6) Any other 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(b) may be varied or superseded by another undertaking; and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.

(7) References in this Part to undertakings under this paragraph shall, unless the context otherwise requires, include references to undertakings adopted under this paragraph; and references to the acceptance or giving of undertakings under this paragraph shall be construed accordingly.

(8) An undertaking which is in force under this paragraph in relation to a reference or possible reference under section 45 or (as the case may be) 62 shall cease to be in force if an order under paragraph 2 or an undertaking under paragraph 3 comes into force in relation to that reference.

(9) An undertaking under this paragraph shall, if it has not previously ceased to be in force, cease to be in force when the intervention notice concerned or (as the case may be) special intervention notice concerned ceases to be in force.

(10) No undertaking shall be accepted by the Secretary of State under this paragraph before the making of a reference under section 45 or (as the case may be) 62 unless the undertaking relates to a relevant merger situation which has been, or may have been, created or (as the case may be) a special merger situation which has been, or may have been, created.

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

(12) In this paragraph and paragraph 2 “pre-emptive action” means action which might prejudice the reference or possible reference concerned under section 45 or (as the case may be) 62 or impede the taking of any action under this Part which may be justified by the Secretary of State’s decisions on the reference.