Enterprise Act 2002

23 Relevant merger situations U.K.

(1) For the purposes of this Part, a relevant merger situation has been created if—

(a) two or more enterprises have ceased to be distinct enterprises at a time or in circumstances falling within section 24; and

(b) the value of the turnover in the United Kingdom of the enterprise being taken over exceeds—

[F1 (i) £1 million, if in the course of the enterprises ceasing to be distinct, a person or group of persons has brought a relevant enterprise (see section 23A) under the ownership or control of the person or group; or

(ii) £70 million, in any other case.]

(2) For the purposes of this Part, a relevant merger situation has also been created if—

(a) two or more enterprises have ceased to be distinct enterprises at a time or in circumstances falling within section 24; and

[F2 (b) the share of supply test is met.]

[F3 (2A) The share of supply test is met if—

(a) as a result of the enterprises ceasing to be distinct enterprises, one or both of the conditions mentioned in subsections (3) and (4) below prevails or prevails to a greater extent; or

(b) in the course of the enterprises ceasing to be distinct a person or group of persons has brought a relevant enterprise under the ownership or control of the person or group and one or both of the conditions mentioned in subsections (4A) and (4B) below was satisfied in relation to the relevant enterprise before it ceased to be a distinct enterprise.]

(3) The condition mentioned in this subsection is that, in relation to the supply of goods of any description, at least one-quarter of all the goods of that description which are supplied in the United Kingdom, or in a substantial part of the United Kingdom—

(a) are supplied by one and the same person or are supplied to one and the same person; or

(b) are supplied by the persons by whom the enterprises concerned are carried on, or are supplied to those persons.

(4) The condition mentioned in this subsection is that, in relation to the supply of services of any description, the supply of services of that description in the United Kingdom, or in a substantial part of the United Kingdom, is to the extent of at least one-quarter—

(a) supply by one and the same person, or supply for one and the same person; or

(b) supply by the persons by whom the enterprises concerned are carried on, or supply for those persons.

[F4 (4A) The condition mentioned in this subsection is that, in relation to the supply of goods of any description—

(a) at least one-quarter of all goods of that description which were supplied in the United Kingdom, or in a substantial part of the United Kingdom, were supplied by or to the person or persons by whom the enterprise was carried on, and

(b) that supply was made in connection with activities of the enterprise by virtue of which it was a relevant enterprise.

(4B) The condition mentioned in this subsection is that, in relation to the supply of services of any description—

(a) the supply of services of that description in the United Kingdom, or in a substantial part of the United Kingdom, was to the extent of at least one-quarter of all the services of that description, supply by or for the person or persons by whom the enterprise is carried on, and

(b) that supply was made in connection with activities of the enterprise by virtue of which it was a relevant enterprise.]

(5) For the purpose of deciding whether the proportion of one-quarter mentioned in subsection (3)[F5 , (4), (4A) or (4B)] is fulfilled with respect to goods or (as the case may be) services of any description, the decision-making authority shall apply such criterion (whether value, cost, price, quantity, capacity, number of workers employed or some other criterion, of whatever nature), or such combination of criteria, as the decision-making authority considers appropriate.

(6) References in subsections (3)[F6 , (4), (4A) and (4B)] to the supply of goods or (as the case may be) services shall, in relation to goods or services of any description which are the subject of different forms of supply, be construed in whichever of the following ways the decision-making authority considers appropriate—

(a) as references to any of those forms of supply taken separately;

(b) as references to all those forms of supply taken together; or

(c) as references to any of those forms of supply taken in groups.

(7) For the purposes of subsection (6) the decision-making authority may treat goods or services as being the subject of different forms of supply whenever—

(a) the transactions concerned differ as to their nature, their parties, their terms or their surrounding circumstances; and

(b) the difference is one which, in the opinion of the decision-making authority, ought for the purposes of that subsection to be treated as a material difference.

(8) The criteria for deciding when goods or services can be treated, for the purposes of this section, as goods or services of a separate description shall be such as in any particular case the decision-making authority considers appropriate in the circumstances of that case.

(9) For the purposes of this Chapter, the question whether a relevant merger situation has been created shall be determined as at—

(a) in the case of a reference which is treated as having been made under section 22 by virtue of section 37(2), such time as the [F7 CMA] may determine; and

(b) in any other case, immediately before the time when the reference has been, or is to be, made.

[F8 (10) Subsections (2) to (4) of section 26 apply for the purposes of this section as they apply for the purposes of that section.]

Textual Amendments

F1 S. 23(1)(b)(i)(ii) inserted (11.5.2018 immediately after S.I. 2018/578 comes into force) by The Enterprise Act 2002 (Turnover Test) (Amendment) Order 2018 (S.I. 2018/593), arts. 1(2), 2(2) (with art. 3)

F2 S. 23(2)(b) substituted (11.6.2018) by The Enterprise Act 2002 (Share of Supply Test) (Amendment) Order 2018 (S.I. 2018/578), arts. 1(2), 3(2) (with art. 6)

F3 S. 23(2A) inserted (11.6.2018) by The Enterprise Act 2002 (Share of Supply Test) (Amendment) Order 2018 (S.I. 2018/578), arts. 1(2), 3(3) (with art. 6)

F4 S. 23(4A)(4B) inserted (11.6.2018) by The Enterprise Act 2002 (Share of Supply Test) (Amendment) Order 2018 (S.I. 2018/578), arts. 1(2), 3(4) (with art. 6)

F5 Words in s. 23(5) substituted (11.6.2018) by The Enterprise Act 2002 (Share of Supply Test) (Amendment) Order 2018 (S.I. 2018/578), arts. 1(2), 3(5) (with art. 6)

F6 Words in s. 23(6) substituted (11.6.2018) by The Enterprise Act 2002 (Share of Supply Test) (Amendment) Order 2018 (S.I. 2018/578), arts. 1(2), 3(6) (with art. 6)

F7 Word in s. 23(9)(a) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 68 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F8 S. 23(10) inserted (11.6.2018) by The Enterprise Act 2002 (Share of Supply Test) (Amendment) Order 2018 (S.I. 2018/578), arts. 1(2), 3(7) (with art. 6)

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 Ss. 23-32 applied (with modifications) (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 (S.I. 2003/1592), art. 2, Sch. 1

C3 Ss. 23-32 amendment to earlier affecting provision S.I. 2003/1592, Sch. 1 (1.4.2014) by The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (S.I. 2014/891), arts. 1, 16 (with arts. 20-23)

C4 S. 23(9)(ab) modified by S.I. 2003/1592, art. 5A(c) (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))