Enterprise Act 2002

Section 68F

[F1 SCHEDULE 5A U.K. Energy network mergers affecting comparative regulation: modification of Chapter 1 of Part 3

Textual Amendments

F1 Sch. 5A inserted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(j), Sch. 16 para. 3

General modifications U.K.

1 (1) Chapter 1 (other than sections 22 and 33) has effect as if—

(a) references to a reference or possible reference under section 22 were references to a reference or possible reference under section 68B, and

(b) references to a reference or possible reference under section 33 were references to a reference or possible reference under section 68C.

(2) The references in sub-paragraph (1) to a reference under a section include [F2 —

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

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

Textual Amendments

F2 Sch. 5A para. 1(2)(a)(b) substituted for words in Sch. 5A para. 1(2) (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 5 para. 10(2); S.I. 2024/1226, regs. 1(2), 2(1)(11) (with Sch. paras. 5(2), 20)

Meaning of “the decision-making authority” U.K.

[F3 1A Section 22(7)(a) (meaning of “the decision-making authority”) has effect as if after “section 33” there were inserted “, 68B or 68C”.]

Textual Amendments

F3 Sch. 5A para. 1A inserted (24.7.2024) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(3), Sch. 6 para. 12(2)

Turnover U.K.

2 Section 23 (relevant merger situations) has effect as if—

(a) in subsection (1), for paragraph (b) there were substituted—

“(b) the value of the turnover in Great Britain of the enterprise being taken over exceeds [F4 £100 million].”;

(b) subsections (2) to (8) were omitted.

Textual Amendments

F4 Sum in Sch. 5A para. 2(a) substituted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 4 para. 7(2); S.I. 2024/1226, regs. 1(2), 2(1)(10) (with Sch. paras. 5(1), 20)

3 Section 28 (turnover test) has effect as if—

(a) references to the United Kingdom were to Great Britain;

[F5 (b) in subsection (5)—

(i) in the words before paragraph (a), for “The CMA shall” there were substituted “The CMA and the Gas and Electricity Markets Authority must each”;

(ii) in paragraph (a), for “the sums for the time being mentioned in section 23(1)(b), (2)(c) and (4E)” there were substituted “the sum for the time being mentioned in section 23(1)(b)”;

(iii) in paragraph (b), for “sums are” there were substituted “sum is”;

(c) in subsection (6)—

(i) for “section 23(1)(b), (2)(c) and (4E)” there were substituted “paragraph 2(a) of Schedule 5A”;

(ii) for “sums” there were substituted “sum”.]

Textual Amendments

F5 Sch. 5A para. 3(b)(c) substituted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 4 para. 7(3); S.I. 2024/1226, regs. 1(2), 2(1)(10) (with Sch. paras. 5(1), 20)

Relevant customer benefits U.K.

4 Section 30 (relevant customer benefits) has effect as if—

(a) in subsection (1)(a)(i), for “lessening of competition concerned” there were substituted “prejudice to the Gas and Electricity Markets Authority”;

(b) in subsections (2)(b) and (3)(b), for “a similar lessening of competition” there were substituted “a similar prejudice to the Gas and Electricity Markets Authority”.

Time limits for decisions about references U.K.

[F6 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.

Textual Amendments

F6 Sch. 5A paras. 5, 5A substituted for sch. 5A para. 5 (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 5 para. 10(3); S.I. 2024/1226, regs. 1(2), 2(1)(11) (with Sch. paras. 5(2), 20)

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

Textual Amendments

F6 Sch. 5A paras. 5, 5A substituted for sch. 5A para. 5 (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 5 para. 10(3); S.I. 2024/1226, regs. 1(2), 2(1)(11) (with Sch. paras. 5(2), 20)

Questions to be decided in relation to completed mergers U.K.

6 Section 35 (questions to be decided in relation to completed mergers) has effect as if—

(a) in subsection (1)(a), after “situation” there were inserted “involving an energy network merger”;

(b) in subsection (1)(b), for the words from “has resulted” to the end there were substituted “has caused, or may be expected to cause, substantial prejudice to the ability of the Gas and Electricity Markets Authority to make comparisons between energy network enterprises of the type involved in the energy network merger”;

(c) for subsection (2) there were substituted—

“(2) For the purposes of this section there is a prejudicial outcome if there is a situation described in subsection (1)(a) which has, or may be expected to have, the effect described in subsection (1)(b).”;

(d) in subsection (3), for “an anti-competitive outcome (within the meaning given by subsection (2)(a))” there were substituted “a prejudicial outcome”;

(e) in subsections (3)(a) and (b) and (4), for “lessening of competition” (in each place it appears) there were substituted “prejudice”.

Questions to be decided in relation to anticipated mergers U.K.

7 Section 36 (questions to be decided in relation to anticipated mergers) has effect as if—

(a) in subsection (1)(a), after “situation” there were inserted “involving an energy network merger”;

(b) in subsection (1)(b), for the words from “result” to the end there were substituted “cause substantial prejudice to the ability of the Gas and Electricity Markets Authority to make comparisons between energy network enterprises of the type involved in the energy network merger”;

(c) after subsection (1) there were inserted—

“(1A) For the purposes of this section there is a prejudicial outcome if there are arrangements described in subsection (1)(a) which may be expected to have the effect described in subsection (1)(b).”;

(d) in subsection (2), for “an anti-competitive outcome (within the meaning given by section 35(2)(b))” there were substituted “a prejudicial outcome”;

(e) in subsections (2)(a) and (b) and (3), for “lessening of competition” (in each place it appears) there were substituted “prejudice”.

Time-limits for investigations and reports U.K.

[F7 7A Section 39 (time-limits for investigations and reports) has effect as if subsection (3A) were omitted.]

Textual Amendments

F7 Sch. 5A para. 7A inserted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 5 para. 10(4); S.I. 2024/1226, regs. 1(2), 2(1)(11) (with Sch. paras. 5(2), 20)

Duty to remedy effects of completed or anticipated mergers U.K.

8 Section 41 (duty to remedy effects of completed or anticipated mergers) has effect as if—

(a) in subsection (1), for “an anti-competitive outcome” there were substituted “a prejudicial outcome (within the meaning of section 35(2) or 36(1A))”;

(b) in subsection (2)(a) and (b), for “lessening of competition” there were substituted “prejudice”;

(c) in subsection (4), for “lessening of competition” there were substituted “prejudice”.]