Enterprise Act 2002

104 Certain duties of relevant authorities to consult U.K.

(1) Subsection (2) applies where the relevant authority is proposing to make a relevant decision in a way which the relevant authority considers is likely to be adverse to the interests of a relevant party.

(2) The relevant authority shall, so far as practicable, consult that party about what is proposed before making that decision.

(3) In consulting the party concerned, the relevant authority shall, so far as practicable, give the reasons of the relevant authority for the proposed decision.

(4) In considering what is practicable for the purposes of this section the relevant authority shall, in particular, have regard to—

(a) any restrictions imposed by any timetable for making the decision; and

(b) any need to keep what is proposed, or the reasons for it, confidential.

(5) The duty under this section shall not apply in relation to the making of any decision so far as particular provision is made elsewhere by virtue of this Part for consultation before the making of that decision.

(6) In this section—

• “the relevant authority” means the [F1 CMA], the Commission or the Secretary of State;

• “relevant decision” means—

  (a)

  in the case of the [F2 CMA], any decision by the [F2 CMA]—

  (i)

  as to whether to make a reference under section 22 [F3 , 33, 68B or 68C] or accept undertakings under section 73 instead of making such a reference; or

  (ii)

  to vary under section 37 such a reference[F4 ; or

  (iii)

  on the questions mentioned in section 35(1) or (3), 36(1) or (2), 47 or 63;]

  (b)

  F5 ...

  (c)

  in the case of the Secretary of State, any decision by the Secretary of State—

  (i)

  as to whether to make a reference under section 45 or 62; or

  (ii)

  to vary under section 49 or (as the case may be) 64 such a reference; and

• “relevant party” means any person who appears to the relevant authority to control enterprises which are the subject of the reference or possible reference concerned.

Textual Amendments

F1 Word in s. 104(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 135(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F2 Word in s. 104(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 135(3)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F3 Words in s. 104(6) substituted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(j), Sch. 16 para. 23

F4 Words in s. 104(6) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 135(3)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F5 Words in s. 104(6) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 135(3)(c) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

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.)

C2 S. 104 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 (S.I. 2003/1592), art. 15, Sch. 3 para. 1(1)(l)(12) (as amended (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 18(1)-(17) (with arts. 20-23))

C3 S. 104 modified by S.I. 2003/1592, art. 5A(d) (as inserted (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 7 (with arts. 20-23))