Enterprise and Regulatory Reform Act 2013

4 U.K. After section 34 insert—

“34ZA Time-limits for decisions about references

(1) In carrying out its function of deciding whether to make a reference under section 22 or 33, the CMA shall, within the initial period—

(a) decide whether the duty to make a reference under the section applies (taking account of the power under section 22(2) or (as the case may be) 33(2) and the operation of section 22(3) or (as the case may be) 33(3)); and

(b) inform the persons carrying on the enterprises concerned by notice of the decision and of the reasons for it.

(2) Nothing in this section prevents the CMA from making a reference under section 22 or 33 in the event that—

(a) it decides that the duty to make a reference does not apply because it is considering whether to accept undertakings under section 73; but

(b) no such undertakings are offered or accepted.

(3) In this section—

• “the initial period” means (subject to any extension under section 34ZB) the period of 40 working days beginning with—

  (a)

  where the CMA is carrying out its function in consequence of the giving of a merger notice under section 96, the first working day after the day on which the CMA gives notice under section 96(2A) to the person who gave the merger notice, and

  (b)

  in any other case, the first working day after the day on which the CMA informs the persons carrying on the enterprises concerned by notice that it has sufficient information to enable it to begin an investigation for the purposes of deciding whether to make a reference;

• “working day” means any day which is not—

  (a)

  a Saturday, a Sunday, Good Friday or Christmas Day, or

  (b)

  a day which is a bank holiday in England and Wales.

(4) For the purposes of paragraph (a) in the definition of “initial period” in subsection (3), the CMA is carrying out its function in consequence of the giving of a merger notice under section 96 if it is considering whether to make a reference under section 22 or 33 in relation to—

(a) arrangements of which notice is given in the merger notice or arrangements which do not differ from them in any material respect, or

(b) the creation of any relevant merger situation which is, or may be, created in consequence of carrying such arrangements into effect.

(5) Nothing in this section applies where section 34A(2) or 46A(2) applies (duties where case referred by the European Commission).

34ZB Extension of time-limits

(1) The CMA may extend the initial period mentioned in section 34ZA(1) if it considers that a relevant person has failed (with or without a reasonable excuse) to comply with any requirement of a notice under section 109 in relation to the case in question.

(2) In subsection (1), “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 paragraph (a) or (b).

(3) For the purposes of subsection (2), 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 control of it.

(4) Where an intervention notice is in force in relation to the matter concerned, the CMA may extend the initial period by no more than 20 working days.

(5) The CMA may by notice extend the initial period if 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 22(1) of the EC Merger Regulation (but is not yet proceeding with the matter in pursuance of such a request).

(6) An extension under subsection (1) or (4) comes into force when published under section 107.

(7) An extension under subsection (1) continues in force until—

(a) the person concerned provides the information or documents to the satisfaction of the CMA or (as the case may be) appears as a witness in accordance with the requirements of the CMA; or

(b) the CMA publishes its decision to cancel the extension.

(8) An extension under subsection (5) shall be for the period which—

(a) begins when notice is given under that subsection, and

(b) ends when the CMA gives notice of the completion by the European Commission of its consideration of the request of the United Kingdom.

(9) In this section, “working day” has the same meaning as in section 34ZA.

34ZC Sections 34ZA and 34ZB: supplementary

(1) An extension of the period mentioned in section 34ZA(1) may be made under each of subsections (1), (4) or (5) of section 34ZB.

(2) No more than one extension is possible under section 34ZB(4).

(3) Where a period is extended or further extended under section 34ZB(1), (4) or (5), the period as extended or (as the case may be) further extended shall, subject to subsections (4) and (5), be calculated by taking the period being extended and adding to it the period of the extension (whether or not those periods overlap in time).

(4) Subsection (5) applies where—

(a) the period mentioned in section 34ZA(1) is further extended;

(b) the further extension and at least one previous extension is made under one or more of subsections (1) and (5) of section 34ZB; 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 subsection (4)(c) are to be disregarded.

(6) The Secretary of State may by order do either or both of the following—

(a) amend section 34ZA so as to alter the period of 40 working days mentioned in subsection (3) of that section or any period for the time being mentioned in that subsection in substitution for that period;

(b) amend section 34ZB so as to alter the period of 20 working days mentioned in subsection (4) of that section or any period for the time being mentioned in that subsection in substitution for that period.

(7) But no alteration may be made by virtue of subsection (6) which results in—

(a) the period for the time being mentioned in section 34ZA(3) exceeding 40 working days; or

(b) the period for the time being mentioned in section 34ZB(4) exceeding 20 working days.

(8) Before making an order under subsection (6), the Secretary of State shall consult the CMA and such other persons as the Secretary of State considers appropriate.

(9) In this section, “working day” has the same meaning as in section 34ZA.”

Commencement Information

I1 Sch. 8 para. 4 partly in force; sch. 8 para. 4 in force for specified purposes at Royal Assent, see s.103(1)(i)

I2 Sch. 8 para. 4 in force at 1.4.2014 in so far as not already in force by S.I. 2014/416, art. 2(1)(d) (with Sch.)