Enterprise Act 2002

[F1 Chapter 3A U.K. Mergers involving newspaper enterprises and foreign powers

Textual Amendments

F1 Pt. 3 Ch. 3A inserted (24.5.2024) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(2)(a), Sch. 7 para. 2 (with s. 130(2)(3))

70A Intervention by the Secretary of State U.K.

(1) The Secretary of State must give the CMA a notice (a “foreign state intervention notice”) if the Secretary of State has reasonable grounds for suspecting that it is or may be the case that—

(a) a foreign state newspaper merger situation has been created, or

(b) arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a foreign state newspaper merger situation.

(2) A foreign state intervention notice must describe the foreign state newspaper merger situation to which it relates.

(3) For the purposes of this Chapter a foreign state newspaper merger situation has been created where—

(a) as a result of two or more enterprises ceasing to be distinct, a relevant merger situation would have been created by virtue of section 23(1) if the modifications in Schedule 6A had effect,

(b) one of the enterprises concerned is a newspaper enterprise, and

(c) as a result of the enterprises ceasing to be distinct, a foreign power is able to control or influence the policy of the person carrying on the newspaper enterprise, or is able to control or influence that policy to a greater extent.

(4) Schedule 6B makes provision about the circumstances in which a foreign power is able to control or influence the policy of a person for the purposes of this section (and references to a foreign power being able to control or influence the policy of a person to a greater extent are to be interpreted accordingly).

(5) A foreign state intervention notice—

(a) comes into force when it is given, and

(b) ceases to be in force when the matter to which it relates is finally determined under this Chapter (see section 70F).

70B Investigation and report by the CMA U.K.

(1) Where the Secretary of State gives the CMA a foreign state intervention notice, the CMA must, within such period as the Secretary of State may require, give the Secretary of State a report in relation to the case.

(2) The report must include—

(a) a summary of representations relevant to the case that have been received by the CMA, and

(b) a decision as to whether the CMA believes that—

(i) a foreign state newspaper merger situation has been created, or

(ii) arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a foreign state newspaper merger situation.

(3) The CMA must carry out such investigations as it considers appropriate for the purposes of producing a report under this section.

(4) For the purposes of its investigation the CMA must invite representations from the enterprises concerned in the case.

70C Intervention to prevent foreign control of a newspaper enterprise U.K.

(1) Subsection (2) applies where the Secretary of State has received a report under section 70B stating that the CMA believes that—

(a) a foreign state newspaper merger situation has been created, or

(b) arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a foreign state newspaper merger situation.

(2) The Secretary of State must make an order containing such provision as the Secretary of State considers reasonable and practicable for the purposes of reversing or preventing the creation of the foreign state newspaper merger situation identified in the report.

(3) An order under subsection (2) may contain—

(a) anything permitted by Schedule 8 (provision that may be contained in certain enforcement orders), and

(b) such supplementary, consequential or incidental provision as the Secretary of State considers appropriate.

(4) An order under subsection (2)—

(a) comes into force at such time as is determined by or under the order, and

(b) may be varied or revoked by another order.

(5) Paragraph 2 of Schedule 7 (enforcement regime for public interest and special public interest cases: order for the purposes of preventing pre-emptive action)—

(a) applies in relation to a foreign state intervention notice as it applies in relation to an intervention notice, and

(b) for this purpose, is to be read as if—

(i) sub-paragraph (10) were omitted;

(ii) for sub-paragraph (12), there were substituted—

“(12) In this paragraph “pre-emptive action” means action which might prejudice a foreign state intervention notice or a report under section 70B, or might impede the taking of any action under this Part in relation to such a notice or report”.

70D Other powers under this Part U.K.

(1) Nothing in this Chapter limits the exercise of powers in relation to a foreign state newspaper merger situation under other provisions of this Part.

(2) The powers in this Chapter may be exercised in relation to a foreign state newspaper merger situation regardless of whether any other power under this Part has been exercised in relation to the case.

(3) The CMA must, in considering whether to make a reference under section 22 or 33, bring to the attention of the Secretary of State any case which it believes may be relevant to the duty in section 70A(1).

70E Meaning of “foreign power” U.K.

(1) In this Chapter, “foreign power” means—

(a) the sovereign or other head of a foreign state in their public or private capacity,

(b) a foreign government or part of a foreign government,

(c) the head or senior members of a foreign government in their private capacity,

(d) an agency or authority of a foreign government, or of part of a foreign government,

(e) the head or senior members of an agency or authority of a foreign government, or of part of a foreign government, in their private capacity,

(f) an authority responsible for administering the affairs of an area within a foreign country or territory, or persons exercising the functions of such an authority,

(g) a political party which is a governing political party of a foreign government, or

(h) the officers of a political party, which is a governing political party of a foreign government, in their private capacity.

(2) A political party is a governing political party of a foreign government if persons holding political or official posts in the foreign government or part of the foreign government—

(a) hold those posts as a result of, or in the course of, their membership of the party, or

(b) in exercising the functions of those posts, are subject to the direction or control of, or significantly influenced by, the party.

(3) In this section—

• “foreign country or territory” means a country or territory outside the United Kingdom, the Channel Islands, the Isle of Man or the British Overseas Territories;

• “foreign government” means the government of a foreign country or territory;

• a “government” includes persons exercising the functions of a government;

• “territory” includes the constituent territories of a federal state.

70F Other interpretation U.K.

(1) For the purposes of this Chapter, section 44(10) is to be read as if the definition of “newspaper” included a news publication circulating wholly or mainly in the United Kingdom or in a part of the United Kingdom on any periodic basis.

(2) For the purposes of this Chapter, a matter is finally determined when the Secretary of State—

(a) makes an order under section 70C(2), or

(b) publishes under section 107 a report of the CMA under section 70B which the Secretary of State has received and which states that the CMA has decided that the CMA believes that—

(i) no foreign state newspaper merger situation has been created, or

(ii) no arrangements are in progress or in contemplation which, if carried into effect would result in the creation of a foreign state newspaper merger situation.

70G Regulations U.K.

(1) The Secretary of State may by regulations change the meaning of—

(a) “foreign power”, or

(b) “newspaper”,

for the purposes of this Chapter.

(2) Regulations under subsection (1)(a) may, among other things—

(a) provide for a description of person to be treated as if they were not a foreign power, and

(b) frame any such description by reference to—

(i) the independence of persons from other descriptions of foreign power, or

(ii) the interest which persons have in a newspaper enterprise.

(3) The Secretary of State may by regulations apply any provision made by or under Chapter 1, with or without modifications, for the purposes of this Chapter (including by way of amendments to the modifications in Schedule 6A).

(4) Regulations under this section may, among other things, make provision having effect on or after 13 March 2024.]