Part 3Mergers

Chapter 1Duty to make references

Determination of references

36 Questions to be decided in relation to anticipated mergers

(1)

Subject to subsections (5) and (6) and section 127(3), the F1CMA shall, on a reference under section 33, decide the following questions—

(a)

whether arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation; and

(b)

if so, whether the creation of that situation may be expected to result in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services.

(2)

The F1CMA shall, if it has decided on a reference under section 33 that there is an anti-competitive outcome (within the meaning given by section 35(2)(b)), decide the following additional questions—

(a)

whether action should be taken by it under section 41(2) for the purpose of remedying, mitigating or preventing the substantial lessening of competition concerned or any adverse effect which may be expected to result from the substantial lessening of competition;

(b)

whether it should recommend the taking of action by others for the purpose of remedying, mitigating or preventing the substantial lessening of competition concerned or any adverse effect which may be expected to result from the substantial lessening of competition; and

(c)

in either case, if action should be taken, what action should be taken and what is to be remedied, mitigated or prevented.

(3)

In deciding the questions mentioned in subsection (2) the F1CMA shall, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to the substantial lessening of competition and any adverse effects resulting from it.

(4)

In deciding the questions mentioned in subsection (2) the F1CMA may, in particular, have regard to the effect of any action on any relevant customer benefits in relation to the creation of the relevant merger situation concerned.

(5)

In relation to the question whether a relevant merger situation will be created, a reference under section 33 may be framed so as to require the F1CMA to exclude from consideration—

(a)

subsection (1) of section 23;

(b)

subsection (2) of that section; or

(c)

one of those subsections if the F1CMA finds that the other is satisfied.

(6)

In relation to the question whether any such result as is mentioned in section 23(2)(b) will arise, a reference under section 33 may be framed so as to require the F1CMA to confine its investigation to the supply of goods or services in a part of the United Kingdom specified in the reference.