Enterprise Act 2002

33 Duty to make references in relation to anticipated mergers U.K.

(1) [F1 The CMA shall, subject to subsections (2) and (3), make a reference to its chair for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 if the CMA 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 relevant merger situation; and

(b) the creation of that situation may be expected to result in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services.

(2) The [F2 CMA] may decide not to make a reference under this section if it believes that—

(a) the market concerned is not, or the markets concerned are not, of sufficient importance to justify the making of a reference F3 ...;

(b) the arrangements concerned are not sufficiently far advanced, or are not sufficiently likely to proceed, to justify the making of a reference F4 ...; or

(c) any relevant customer benefits in relation to the creation of the relevant merger situation concerned outweigh the substantial lessening of competition concerned and any adverse effects of the substantial lessening of competition concerned.

(3) No reference shall be made under this section if—

[F5 (za) the period within which the CMA is required by section 34ZA to decide whether the duty to make the reference applies has expired without such a decision having been made;]

(a) the making of the reference is prevented by section F6 . . . 74(1) F7 ... or paragraph 4 of Schedule 7;

(b) the [F8 CMA] is considering whether to accept undertakings under section 73 instead of making such a reference;

(c) the arrangements concerned are being, or have been, dealt with in connection with a reference made under section 22;

(d) a notice under section 42(2) is in force in relation to the matter or the matter to which such a notice relates has been finally determined under Chapter 2 otherwise than in circumstances in which a notice is then given to the [F8 CMA] under section 56(1); [F9 or]

(e) the European Commission is considering a request made, in relation to the matter concerned, by the United Kingdom (whether alone or with others) under article [F10 22(1) of the EC Merger Regulation], is proceeding with the matter in pursuance of such a request or has dealt with the matter in pursuance of such a request[F11 ; or

(f) subject to subsection (3A), a reasoned submission requesting referral to the European Commission has been submitted to the European Commission under article 4(5) of the EC Merger Regulation.]

[F12 (3A) Section 33(3)(f) shall cease to apply if the [F8 CMA] is informed that a Member State competent to examine the concentration under its national competition law has, within the time permitted by Article 4(5) of the EC Merger Regulation, expressed its disagreement as regards the request to refer the case to the European Commission; and this subsection shall be construed in accordance with that Regulation.]

(4) A reference under this section shall, in particular, specify—

(a) the enactment under which it is made; and

(b) the date on which it is made.

Textual Amendments

F1 Words in s. 33(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 72(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F2 Word in s. 33(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 72(3)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F3 Words in s. 33(2)(a) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 72(3)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F4 Words in s. 33(2)(b) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 72(3)(c) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F5 S. 33(3)(za) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 8 para. 3(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F6 Words in s. 33(3)(a) repealed (29.12.2003) by Communications Act 2003 (c. 21), ss. 406(7), 411(2)(3), Sch. 19(1) (with transitional provisions in Sch. 18 and with Sch. 19 Note 1); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

F7 Words in s. 33(3)(a) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 8 para. 3(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F8 Word in s. 33(3)(3A) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 72(4) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F9 Word in s. 33(3) ceased to have effect (1.5.2004) by virtue of The EC Merger Control (Consequential Amendments) Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(6)(a)

F10 Words in s. 33(3)(e) substituted (1.5.2004) by The EC Merger Control (Consequential Amendments) Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(6)(b)

F11 S. 33(3)(f) and preceding word inserted (1.5.2004) by The EC Merger Control (Consequential Amendments) Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(7)

F12 S. 33(3A) inserted (1.5.2004) by The EC Merger Control (Consequential Amendments) Regulations 2004 (S.I. 2004/1079), reg. 2, Sch. para. 2(8)

Modifications etc. (not altering text)

C1 Pt. 3 modified (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 4 para. 56; S.I. 2014/416, art. 2(1)(c) (with Sch.)