Digital Markets, Competition and Consumers Act 2024

Prospective

Section 128

Schedule 5 U.K. Mergers: fast-track references under sections 22 and 33 of EA 2002

1 U.K. Chapter 1 of Part 3 of EA 2002 (mergers: duty to make references) is amended as follows.

Commencement Information

I1 Sch. 5 para. 1 not in force at Royal Assent, see s. 339(1)

2 (1) Section 22 (duty to make references in relation to completed mergers) is amended as follows. U.K.

(2) After subsection (1) insert—

“(1A) The CMA must 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 has decided, under section 34ZF(2), to accept a fast-track reference request.”

(3) In subsection (2), in the words before paragraph (a), for “this section” substitute “subsection (1)”.

(4) In subsection (3), in the words before paragraph (a), for “this section” substitute “subsection (1)”.

Commencement Information

I2 Sch. 5 para. 2 not in force at Royal Assent, see s. 339(1)

3 (1) Section 33 (duty to make references in relation to anticipated mergers) is amended as follows. U.K.

(2) After subsection (1) insert—

“(1A) The CMA must 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 has decided, under section 34ZF(3), to accept a fast-track reference request.”

(3) In subsection (2), in the words before paragraph (a), for “this section” substitute “subsection (1)”.

(4) In subsection (3), in the words before paragraph (a), for “this section” substitute “subsection (1)”.

Commencement Information

I3 Sch. 5 para. 3 not in force at Royal Assent, see s. 339(1)

4 (1) Section 34ZA (time-limits for decisions about references) is amended as follows. U.K.

(2) In subsection (1)—

(a) in the words before paragraph (a), for “section 22 or 33” substitute “section 22(1) or 33(1)”;

(b) in paragraph (a), for “the section” substitute “the subsection”.

(3) After that subsection insert—

“(1A) In carrying out its function of making a reference under section 22(1A) or 33(1A), the CMA must, within the initial period, inform the persons carrying on the enterprises concerned by notice of the making of the reference.”

(4) In subsection (2), in the words before paragraph (a), for “section 22 or 33” substitute “section 22(1) or 33(1)”.

Commencement Information

I4 Sch. 5 para. 4 not in force at Royal Assent, see s. 339(1)

5 U.K. In section 34ZB (extension of time-limits), in subsection (1), for “mentioned in” substitute “for the purposes of”.

Commencement Information

I5 Sch. 5 para. 5 not in force at Royal Assent, see s. 339(1)

6 U.K. In section 34ZC (sections 34ZA and 34ZB: supplementary), in subsection (1), for “period mentioned in” substitute “initial period for the purposes of”.

Commencement Information

I6 Sch. 5 para. 6 not in force at Royal Assent, see s. 339(1)

7 U.K. After section 34ZC (sections 34ZA and 34ZB: supplementary) insert—

“34ZD Fast-track reference requests

(1) Subsection (2) applies where the following conditions are met—

(a) arrangements or proposed arrangements might have resulted or might result in the creation of a relevant merger situation (the “arrangements concerned”),

(b) no reference has been made under section 22 or 33 in respect of the arrangements concerned, and

(c) the CMA has not informed the persons carrying on the enterprises concerned of a decision that the duty to make a reference under section 22(1) or 33(1) does not apply in respect of those arrangements.

(2) The persons carrying on the enterprises concerned may make a fast-track reference request to the CMA at any time before the end of the initial period (whether or not that period has begun).

(3) In this section and in sections 34ZE and 34ZF, “fast-track reference request” means a request that the CMA makes a reference under section 22(1A) or 33(1A) in relation to the arrangements concerned.

34ZE Fast-track reference requests: procedure

(1) This section applies where a fast-track reference request is made and not withdrawn.

(2) Where the fast-track reference request is made before the beginning of the initial period, the CMA may, at any time before the beginning of that period, reject the request.

(3) Where the CMA has not rejected the fast-track reference request in accordance with subsection (2), the CMA must, within the decision period, decide whether to accept the request in accordance with section 34ZF or reject the request.

(4) Where the CMA accepts or rejects a fast-track reference request, the CMA must notify the persons carrying on the enterprises concerned that the request has been accepted or rejected.

(5) In this section—

• “decision period” means, in relation to the arrangements concerned—

  (a)

  in a case where the initial period has not begun, that period, or

  (b)

  in a case where the initial period has begun, the period beginning with the day on which the fast-track reference request is made and ending at the end of the initial period;

• “initial period” has the meaning given by section 34ZA(3).

34ZF Acceptance by the CMA of fast-track reference requests

(1) The CMA may accept a fast-track reference request only if the condition in subsection (2) or (3) is met.

(2) The condition in this subsection is that, in relation to the arrangements concerned—

(a) the CMA believes that it is or may be the case that a relevant merger situation has been created, and

(b) the CMA would not be prevented from making a reference under section 22(1) by reason of section 22(3).

(3) The condition in this subsection is that, in relation to the arrangements concerned—

(a) the CMA believes that it is or may be the case that, if carried into effect, the arrangements will result in the creation of a relevant merger situation, and

(b) the CMA would not be prevented from making a reference under section 33(1) by reason of section 33(3).

(4) In deciding whether to accept a fast-track reference request under subsection (2) or (3), the CMA must have regard, in particular, to—

(a) whether the arrangements concerned raise any consideration specified in section 58;

(b) whether a special intervention notice (see section 59(2)) is in force in relation to the arrangements.

(5) Where the CMA decides to accept a fast-track reference request the duties to make references under sections 22(1) and 33(1) do not apply, and accordingly the CMA may not make any reference under those provisions in respect of the arrangements concerned (but see the duties under sections 22(1A) and 33(1A)).”

Commencement Information

I7 Sch. 5 para. 7 not in force at Royal Assent, see s. 339(1)

8 (1) Section 39 (time-limits for investigations and reports) is amended as follows. U.K.

(2) In subsection (3), after “section 38” insert “on a reference under section 22(1) or 33(1)”.

(3) After that subsection insert—

“(3A) The CMA may extend, by no more than 11 weeks, the period within which a report under section 38 on a reference under section 22(1A) or 33(1A) is to be prepared and published if it considers that there are special reasons why the report cannot be prepared and published within that period.”

(4) In subsection (7), after “(3)” insert “, (3A)”.

Commencement Information

I8 Sch. 5 para. 8 not in force at Royal Assent, see s. 339(1)

9 (1) Section 40 (section 39: supplementary) is amended as follows. U.K.

(2) In subsection (4), after “section 39(3)” insert “or (3A)”.

(3) In subsection (5), before “or (4)” insert “, (3A)”.

Commencement Information

I9 Sch. 5 para. 9 not in force at Royal Assent, see s. 339(1)

10 (1) In Chapter 3 of Part 3 of EA 2002 (mergers: other special cases), Schedule 5A (energy network mergers affecting comparative regulation: modifications of Chapter 1 of Part 3) is amended as follows. U.K.

(2) In paragraph 1 (general modifications), in sub-paragraph (2), for the words after “include” substitute “—

(a) a reference made under a subsection of that section;

(b) a reference treated as made under that section.”

(3) For paragraph 5 (time limits for decisions about references) substitute—

“5 Section 34ZA (time-limits for decisions about references) has effect as if—

(a) in subsection (1)(a)—

(i) the reference to section 22(2) were to section 68B(2);

(ii) the reference to section 22(3) were to section 68B(3);

(iii) the reference to section 33(2) were to section 68C(2);

(iv) the reference to section 33(3) were to section 68C(3);

(b) section (1A) were omitted.

5A Chapter 1 has effect as if sections 34ZD to 34ZF (fast-track reference requests) were omitted.”

(4) After paragraph 7 insert—

“Time-limits for investigations and reports

7A Section 39 (time-limits for investigations and reports) has effect as if subsection (3A) were omitted.”

Commencement Information

I10 Sch. 5 para. 10 not in force at Royal Assent, see s. 339(1)

11 (1) In Chapter 4 of Part 3 of EA 2002 (mergers: enforcement), section 73 (undertakings in lieu of references under section 22 or 33) is amended as follows. U.K.

(2) In the heading, for “section 22, 33” substitute “section 22(1), 33(1)”.

(3) In subsection (1), for “section 22 or 33” substitute “section 22(1) or 33(1)”.

Commencement Information

I11 Sch. 5 para. 11 not in force at Royal Assent, see s. 339(1)

12 U.K. Chapter 5 of Part 3 of EA 2002 (mergers: supplementary) is amended as follows.

Commencement Information

I12 Sch. 5 para. 12 not in force at Royal Assent, see s. 339(1)

13 U.K. In section 104 (certain duties of relevant authorities to consult), in subsection (6), in the definition of “relevant decision”, in paragraph (a)—

(a) in sub-paragraph (i), for “section 22, 33” substitute “section 22(1), 33(1)”;

(b) in sub-paragraph (ii), for “such a reference” substitute “a reference under section 22, 33, 68B or 68C”.

Commencement Information

I13 Sch. 5 para. 13 not in force at Royal Assent, see s. 339(1)

14 (1) Section 107 (further publicity requirements) is amended as follows. U.K.

(2) In subsection (1)—

(a) in paragraph (a), for “section 22, 33” substitute “section 22(1), 33(1)”;

(b) after paragraph (aa) insert—

“(aaa) any decision made by it to accept a fast-track reference request under section 34ZD and the resulting reference made by it;”.

(3) In subsection (6), after “in relation to” insert —

(a) any decision published under subsection (1)(aaa), or

(b).

Commencement Information

I14 Sch. 5 para. 14 not in force at Royal Assent, see s. 339(1)

15 U.K. In section 130 (interpretation), in the appropriate place insert—

“Fast-track reference request

section 34ZD(3)”.

Commencement Information

I15 Sch. 5 para. 15 not in force at Royal Assent, see s. 339(1)