Digital Markets, Competition and Consumers Act 2024

Prospective

Section 127

Schedule 4 U.K. Relevant and special merger situations

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

Commencement Information

I1 Sch. 4 para. 1 not in force at Royal Assent, see s. 339(1)

2 (1) Section 23 (relevant merger situations) is amended as follows. U.K.

(2) In subsection (1), in paragraph (b), for “£70 million” substitute “£100 million”.

(3) In subsection (2)—

(a) omit the “and” at the end of paragraph (a);

(b) at the end insert “; and

(c) the value of the turnover in the United Kingdom of—

(i) the enterprise being taken over, or

(ii) any other enterprise concerned,

exceeds £10 million.”

(4) Before subsection (3) insert—

“(2B) For the purposes of subsection (2)(c)(ii), any turnover of any other enterprise concerned that is also turnover of the enterprise being taken over is to be ignored.”

(5) Before subsection (5) insert—

“(4C) 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

(b) each of the conditions mentioned in subsections (4D) to (4F) is satisfied.

(4D) The condition mentioned in this subsection is that, were it not for the enterprises concerned ceasing to be distinct enterprises, in relation to the supply of goods or services of any description, at least 33 per cent of all the goods or (as the case may be) services of that description which are supplied in the United Kingdom, or in a substantial part of the United Kingdom, would be supplied—

(a) by the person or persons by whom one of the enterprises concerned (“E”) would be carried on, or

(b) to that person or those persons,

in connection with E or any other enterprise concerned with which E is under common ownership or common control.

(4E) The condition mentioned in this subsection is that the total value of the turnover in the United Kingdom of E exceeds £350 million.

(4F) The condition mentioned in this subsection is that, were it not for the enterprises concerned ceasing to be distinct enterprises, an enterprise within subsection (4G) would satisfy one or more of the following additional conditions—

(a) the enterprise would be carried on by a body of persons corporate or unincorporate formed or recognised under the law of any part of the United Kingdom;

(b) the activities, or part of the activities, of the enterprise would be carried on in the United Kingdom;

(c) the person, or persons, by whom the enterprise would be carried on supply goods or services to a person or persons in the United Kingdom in connection with the enterprise.

(4G) The following enterprises are within this subsection—

(a) any enterprise concerned other than—

(i) E, or

(ii) any other enterprise with which E is under common ownership or common control;

(b) any enterprise concerned that, as a result of the enterprises concerned ceasing to be distinct enterprises, a person or group of persons may be treated as having brought under their control by virtue of section 26(4).”

(6) In subsection (5), after “(4)” insert “, or of 33 per cent mentioned in subsection (4D),”.

(7) In subsection (6), for “and (4)” substitute “, (4), (4D) and (4F)(c)”.

Commencement Information

I2 Sch. 4 para. 2 not in force at Royal Assent, see s. 339(1)

3 (1) Section 28 (turnover test) is amended as follows. U.K.

(2) In subsection (5)—

(a) in paragraph (a)—

(i) for “sum” substitute “sums”;

(ii) after “section 23(1)(b)” insert “, (2)(c) and (4E)”;

(b) in paragraph (b), for “sum is” substitute “sums are”.

(3) In subsection (6)—

(a) after “section 23(1)(b)” insert “, (2)(c) or (4E)”;

(b) for “the sum” substitute “any of the sums”.

Commencement Information

I3 Sch. 4 para. 3 not in force at Royal Assent, see s. 339(1)

4 U.K. In Chapter 2 of Part 3 of EA 2002 (mergers: public interest cases), in section 58A (construction of consideration specified in section 58(2C)), in subsection (1), for “section 58 and this section” substitute “this Part”.

Commencement Information

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

5 U.K. Chapter 3 of Part 3 of EA 2002 (mergers: other special cases) is amended as follows.

Commencement Information

I5 Sch. 4 para. 5 not in force at Royal Assent, see s. 339(1)

6 (1) Section 59 (intervention by Secretary of State in special public interest cases) is amended as follows. U.K.

(2) For subsections (3) and (3A) substitute—

“(3) For the purposes of this Part, a special 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;

(b) no relevant merger situation has been created; and

(c) immediately before the enterprises concerned ceased to be distinct, one or more of the conditions mentioned in subsections (3C) to (3F) were satisfied.”

(3) After subsection (3D) insert—

“(3E) The condition mentioned in this subsection is that a relevant merger situation would have been created if, in subsection (1) of section 23—

(a) the “and” at the end of paragraph (a) were omitted;

(b) for paragraph (b) there were substituted—

“(b) one of the enterprises concerned is a media enterprise or a newspaper enterprise; and”;

(c) after that paragraph there were inserted—

“(c) the value of the turnover in the United Kingdom of the enterprise being taken over exceeds £70 million.”

(3F) The condition mentioned in this subsection is that a relevant merger situation would have been created if, for section 23(2)(c), there were substituted—

“(c) one of the enterprises concerned is a media enterprise or a newspaper enterprise.””

(4) In subsection (5), after “deciding” insert “whether two or more enterprises have ceased to be distinct at a time or in circumstances falling within section 24,”

(5) In subsection (6A), for the words from “amend” to the end substitute “—

(a) substitute a new sum for the sum for the time being mentioned in subsection (3E)(c);

(b) amend the conditions mentioned in subsections (3C), (3D), (3E)(b) and (3F).”

Commencement Information

I6 Sch. 4 para. 6 not in force at Royal Assent, see s. 339(1)

7 (1) Schedule 5A (energy network mergers affecting comparative regulation: modifications of Chapter 1 of Part 3) is amended as follows. U.K.

(2) In paragraph 2 (modifications of section 23), in paragraph (a), in the substituted text, for “£70 million” substitute “£100 million”.

(3) In paragraph 3 (modifications of section 28), for paragraphs (b) and (c) substitute—

“(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”.”

Commencement Information

I7 Sch. 4 para. 7 not in force at Royal Assent, see s. 339(1)

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

Commencement Information

I8 Sch. 4 para. 8 not in force at Royal Assent, see s. 339(1)

9 (1) Section 123 (power to alter share of supply test) is amended as follows. U.K.

(2) In the heading, for “share of supply test” substitute “conditions for a relevant merger situation”.

(3) In subsection (2), at the end insert—

“(c) to amend or replace the condition mentioned in paragraph (a) of subsection (4C) of that section.”

(4) After subsection (3) insert—

“(3A) In exercising the power under subsection (1) to amend or replace the condition mentioned in subsection (4D) or (4E) of section 23 or any condition which for the time being applies instead of it, the Secretary of State must, in particular, have regard to the desirability of ensuring that any amended or new condition continues to operate by reference to the degree of commercial strength that at least one of the enterprises concerned would have had if the enterprises concerned had not ceased to be distinct enterprises.”

Commencement Information

I9 Sch. 4 para. 9 not in force at Royal Assent, see s. 339(1)

10 U.K. In section 130 (index of defined expressions), in the appropriate place insert—

“Media enterprise

Section 58A(1)”.

Commencement Information

I10 Sch. 4 para. 10 not in force at Royal Assent, see s. 339(1)