Section 130
1In EA 2002, Part 3 (mergers) is amended as follows.
2After Chapter 3 insert—
(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).
(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.
(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”.
(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).
(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.
(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.
(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.”
3After Schedule 6 insert—
Section 70A
1(1)Sections 23 to 29 apply for the purposes of Chapter 3A of Part 1, subject to the following modifications.
(2)Section 23 is to be read as if—
(a)in subsection (1), for the amount in paragraph (b), there were substituted “£2 million”;
(b)in subsection (9), for paragraphs (a) and (b), there were substituted—
“(a)in relation to the giving of a foreign state intervention notice, the time when the notice is given;
(b)in relation to the giving of a report by the CMA under section 70B, the time of the giving of the report.”
(3)Section 24 is to be read as if—
(a)for subsection (1)(a) there were substituted—
“(a)the two or more enterprises ceased to be distinct enterprises before the day on which—
(i)in a case to which section 23(9)(a) applies, the foreign state intervention notice relating to them is given, or
(ii)in a case to which section 23(9)(b) applies, the CMA gives its report relating to them under section 70B,
and did so not more than four months before that day; or”;
(b)in subsection (1)(b), after “distinct enterprises” there were inserted “, including facts about whether or the extent to which a foreign power is able to control or influence the policy of a person carrying on a newspaper enterprise as a result of the enterprises ceasing to be distinct enterprises,”;
(c)the reference to the CMA in subsection (2)(a) included a reference to the Secretary of State;
(d)for subsection (2)(b) there were substituted—
“(b)it is given to the Secretary of State or the CMA more than four months before the day on which—
(i)in a case to which section 23(9)(a) applies, the foreign state intervention notice relating to them is given, or
(ii)in a case to which section 23(9)(b) applies, the CMA gives its report relating to them under section 70B; or
(c)the facts are made public more than four months before the day on which—
(i)in a case to which section 23(9)(a) applies, the foreign state intervention notice relating to them is given, or
(ii)in a case to which section 23(9)(b) applies, the CMA gives its report relating to them under section 70B.”.
(4)Section 25 is to be read as if—
(a)subsections (4) and (5) were omitted;
(b)the powers to extend time-limits under section 25 were not exercisable by the CMA before the giving of a foreign state intervention notice by the Secretary of State.
(5)Section 26 is to be read as if—
(a)in subsection (3)—
(i)“materially” were omitted;
(ii)for “may, for the purposes of subsections (1) and (2), be treated” there were substituted “is to be treated, for the purposes of subsections (1) and (2),”;
(b)for subsection (4) there were substituted—
“(4)For the purposes of subsection (1), in so far as it relates to bringing two or more enterprises under common control, where a foreign power is already able to control or influence the policy of a person carrying on a newspaper enterprise to some extent, the foreign power is to be treated as bringing the newspaper enterprise under its control if anything is done which results in the foreign power being able to control or influence the policy of that person to a greater extent (whether by virtue of acquiring more shares or voting rights in the person, directly or indirectly, or otherwise).”
(6)Section 27 is to be read as if—
(a)references to the “decision-making authority” were to “the CMA or the Secretary of State”;
(b)in subsection (5), for “a reference” there were substituted “deciding whether or when a foreign state newspaper merger situation has been created”.
(7)Section 28 is to be read as if, in subsection (4), the reference to the “decision-making authority” were to “the CMA or the Secretary of State”.
(8)Section 29 is to be read as if—
(a)in subsection (1)—
(i)the reference to the “decision-making authority” were to “the CMA or the Secretary of State”;
(ii)for “a reference” there were substituted “deciding whether or when a foreign state newspaper merger situation has been created”;
(b)in subsection (2)(a)(i) “materially” were omitted;
(c)in subsection (2)(a)(ii), for “degree” there were substituted “extent”;
(d)subsection (2)(b) and (3) were omitted.
2(1)The Enterprise Act 2002 (Anticipated Mergers) Order 2003 applies for the purposes of Chapter 3A of Part 1, subject to the following modifications.
(2)In Article 3, the words before paragraph (a) are to be read as if, for “in relation to references and notices”, there were substituted “for the purposes of Chapter 3A of Part 1 of the Act”.
(3)Article 3(a) is to be read as if—
(a)in the substituted version of section 27(5), for “a reference” there were substituted “deciding whether or when a foreign state news paper merger situation will be created”;
(b)the substituted version of section 27(6)(a)(i), for “the reference” there were substituted “the foreign state intervention notice relating to the situation”.
(4)Article 3(b) is to be read as if—
(a)in the substituted section 29(2)(a)(i), “materially” were omitted;
(b)in the substituted section 29(2)(a)(ii), for “degree” there were substituted “extent”;
(c)in the substituted section 29(4), for “the reference” there were substituted “the foreign state intervention notice”.
Section 70A
1(1)A foreign power is able to control or influence the policy of a person for the purposes of section 70A if one or more of the following conditions is met.
(2)Condition 1 is that the foreign power holds, directly or indirectly, any of the shares in the person.
(3)Condition 2 is that the foreign power holds, directly or indirectly, any of the voting rights in the person.
(4)Condition 3 is that the foreign power holds the right, directly or indirectly, to appoint or remove an officer of the person.
(5)Condition 4 is that the foreign power has the right or ability to direct, control or influence to any extent, the person’s policy or activities (in whole or in part, and whether directly or indirectly), despite not meeting condition 1, 2 or 3.
(6)Condition 5 is that—
(a)the trustees of a trust, or the members of a partnership, unincorporated association or other entity, that is not a legal person under the law by which it is governed, would, if they were a foreign power, meet one or more of conditions 1 to 4 (in their capacity as such) in relation to the person, and
(b)the foreign power has the right or ability to direct, control or influence to any extent the activities of that trust or entity (in whole or in part, and whether directly or indirectly), or has any other interest in, or right over or in relation to, the trust or entity, or any of the trustees of the trust or the members of the entity, whether directly or indirectly.
2In this Schedule, “officer”—
(a)in relation to a body corporate, means a director, member of the committee of management, chief executive, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity;
(b)in relation to a partnership, means a partner, a person purporting to act as a partner or a person concerned in the management or control of the partnership or who purports to act in the capacity of a person so concerned;
(c)in relation to an unincorporated association other than a partnership, means a person who is concerned in the management or control of the association or purports to act in the capacity of a person so concerned.
3This Part makes provision about the interpretation of this Schedule.
4If a foreign power holds a share or right jointly with another person (whether or not a foreign power), each of those persons is to be taken to hold that share or right.
5(1)If shares or rights held by a foreign power and shares or rights held by another person (whether or not a foreign power) are the subject of a joint arrangement between those persons, each of those persons is to be taken to hold the combined shares or rights of both persons.
(2)A “joint arrangement” is an arrangement between the holders of shares (or rights) that they will exercise all or substantially all the rights conferred by their respective shares (or rights) jointly in a way that is pre-determined by the arrangement.
(3)For the meaning of “arrangement”, see paragraph 12.
6(1)In relation to a person that has a share capital, a reference to holding any of the shares in that person is to holding any shares comprised in the issued share capital of that person.
(2)In relation to a person that does not have a share capital, a reference to holding any of the shares in that person is to holding a right to share to any extent in the capital or, as the case may be, profits of that person.
7(1)A reference to the voting rights in a person is to the rights conferred on shareholders in respect of their shares (or, in the case of a person not having a share capital, on members) to vote at general meetings of the person on all or substantially all matters.
(2)In relation to a person that does not have general meetings at which matters are decided by the exercise of voting rights, a reference to exercising voting rights in the person is to be read as a reference to exercising rights in relation to the person that are equivalent to those of a person entitled to exercise voting rights in a company.
8In applying this Schedule, voting rights in a person held by the person itself are to be disregarded.
9(1)A foreign power holds a share “indirectly” if the foreign power has any stake in a person and that person—
(a)holds the share in question, or
(b)is part of a chain of persons—
(i)each of which (other than the last) has any stake in the person immediately below it in the chain, and
(ii)the last of which holds the share.
(2)A foreign power holds a right “indirectly” if the foreign power has any stake in a person and that person—
(a)holds that right, or
(b)is part of a chain of persons—
(i)each of which (other than the last) has any stake in the person immediately below it in the chain, and
(ii)the last of which holds that right.
(3)For the purposes of sub-paragraphs (1) and (2), a person (“A”) has “any stake” in another person (“B”) if—
(a)A holds any shares or voting rights in B,
(b)A is a member of B and has the right to appoint or remove an officer of B,
(c)A is a member of B and controls alone, or pursuant to an agreement with other shareholders or members, any of the voting rights in B, or
(d)A has the right or ability to control or influence B to any extent, despite not being within paragraph (a), (b) or (c).
10A share held by a person as a nominee for another is to be treated as held by the other (and not by the nominee).
11(1)Where a person controls a right, the right is to be treated as held by that person (and not by the person who in fact holds the right, unless that person also controls it).
(2)A person “controls” a right if, by virtue of any arrangement between that person and others, the right is exercisable only—
(a)by that person,
(b)in accordance with that person’s directions or instructions, or
(c)with that person’s consent or concurrence.
12(1)For the purposes of this Schedule, “arrangement” includes—
(a)any scheme, agreement or understanding, whether or not it is legally enforceable, and
(b)any convention, custom or practice of any kind.
(2)But something does not count as an arrangement unless there is at least some degree of stability about it (whether by its nature or terms, the time it has been in existence or otherwise).
13(1)Rights that are exercisable only in certain circumstances are to be taken into account only—
(a)where the circumstances have arisen, and for so long as they continue to obtain, or
(b)when the circumstances are within the control of the person having the rights.
(2)But rights that are exercisable by an administrator or by creditors while a person is in relevant insolvency proceedings are not to be taken into account even while the person is in those proceedings.
(3)“Relevant insolvency proceedings” means—
(a)administration within the meaning of the Insolvency Act 1986,
(b)administration within the meaning of the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)), or
(c)proceedings under the insolvency law of another country or territory during which a person’s assets and affairs are subject to the control or supervision of a third party or creditor.
(4)Rights that are normally exercisable but are temporarily incapable of exercise are to continue to be taken into account.
14Rights attached to shares held by way of security provided by a person are to be treated for the purposes of this Schedule as held by that person—
(a)where apart from the right to exercise them for the purpose of preserving the value of the security, or of realising it, the rights are exercisable only in accordance with that person’s instructions, and
(b)where the shares are held in connection with the granting of loans as part of normal business activities and apart from the right to exercise them for the purpose of preserving the value of the security, or of realising it, the rights are exercisable only in that person’s interests.
15(1)The Secretary of State may by regulations make provision—
(a)to change (by increasing or decreasing) the proportion of shares or rights which a foreign power must hold in a person carrying on a newspaper enterprise, whether directly or indirectly, in order for the foreign power to be able to control or influence the policy of a person for the purposes of section 70A;
(b)to change (by increasing or decreasing) the proportion of shares or rights which is to be held by persons in a chain of persons for the purposes of determining whether shares or rights are held indirectly;
(c)about assumptions which are to be made when determining whether a foreign power is able to control or influence the policy of a person, including assumptions framed by reference to the ownership of shares or voting rights by any person;
(d)about the extent to which a foreign power needs to be able to control or influence the policy of a person in order to control or influence that policy for the purposes of section 70A, including provision about a foreign power that is already able to control or influence the policy of a person to some extent being able to control or influence that policy to a greater extent;
(e)to change or supplement Part 1 of this Schedule so as to include circumstances (for example, circumstances involving more complex structures) that give a foreign power a level of control or influence in relation to the policy of a person broadly similar to the level of control or influence given by the conditions in paragraph 1;
(f)in consequence of any provision made by virtue of paragraph (e), to change or supplement Part 2 of this Schedule so that circumstances specified in that Part in which a person is to be regarded as holding an interest in another person correspond to any of the conditions in paragraph 1, or would do so but for the extent of the interest.
(2)The provision that may be made under this paragraph, read with section 124(2)(a), includes—
(a)different provision for different descriptions of foreign power, and
(b)different provision for different persons or descriptions of person in a chain of persons.
(3)Regulations under this paragraph may, among other things—
(a)confer a discretion on the CMA;
(b)make provision having effect on or after 13 March 2024.”
4(1)In section 86 (enforcement orders: general provisions), in subsection (6), after “section” insert “70C,”.
(2)In section 88 (contents of certain enforcement orders), in subsection (1), after “section” insert “70C, ”.
(3)In section 94(8) (rights to enforce certain orders)—
(a)after “made by the Secretary of State under” insert “section 70C(2),”;
(b)for “paragraph 2 of that Schedule” substitute “paragraph 2 of Schedule 7”.
(4)In section 107 (further publicity requirements)—
(a)in subsection (3), after paragraph (g) insert—
“(ga)any foreign state intervention notice given by the Secretary of State;
(gb)any report of the CMA under section 70B which the Secretary of State has received;”;
(b)after subsection (11) insert—
“(12)The Secretary of State must publish any report of the CMA under section 70B which the Secretary of State has received within the period of 7 days beginning with the day on which the Secretary of State receives the report.”
(5)In section 109 (attendance of witnesses and production of documents etc), in subsection (A1)(b), at the end insert “or a foreign state intervention notice under section 70A”.
(6)In section 110A (restriction on powers to impose penalties under section 110), after subsection (8) insert—
“(8A)Where the section 109 power is exercised for the purpose mentioned in section 109(A1)(b) in connection with a matter that is the subject of a foreign state intervention notice under section 70A, the relevant day is the day when the matter to which the notice relates is finally determined under Chapter 3A (see section 70F).”
(7)In section 118 (excisions from reports), in subsection (1)—
(a)omit the “or” at the end of paragraph (aa), and
(b)at the end of paragraph (b) insert “, or
(c)a report of the CMA under section 70B.”
(8)In section 120 (review of decisions under Part 3), in subsection (1A), after paragraph (a) insert—
“(aa)a decision of the CMA or the Secretary of State in connection with a foreign state newspaper merger situation;”.
(9)In section 124 (orders and regulations under Part 3)—
(a)in subsection (3)—
(i)after “59(6A)” insert “, 70G”;
(ii)after “above)” insert “, or paragraph 15 of Schedule 6B,”;
(b)in subsection (5), after “65(3)),” insert “70C”;
(c)after subsection (6) insert—
“(6A)A statutory instrument containing regulations under section 70G or paragraph 15 of Schedule 6B may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”;
(d)in subsection (10), after “58(3)” insert “or 70G, or paragraph 15 of Schedule 6B”.
(10)In section 127 (associated persons), in subsection (1)—
(a)omit the “and” at the end of paragraph (aa), and
(b)after that paragraph insert—
“(ab)for the purposes of section 70A(3);”.
(11)In section 129 (other interpretation provisions), in subsection (1), at the appropriate place insert—
““foreign state intervention notice” means a notice under section 70A(1);
“foreign state newspaper merger situation” is to be interpreted in accordance with section 70A(3);”.
(12)In the table in section 130 (index of defined expressions), at the appropriate place insert—
| “Foreign state intervention notice | Section 70A(1) |
| Foreign state newspaper merger situation | Section 70A(3)” |
(13)In Schedule 8 (provision that may be contained in certain enforcement orders), in paragraph 20A (newspaper mergers), after sub-paragraph (1) insert—
“(1A)This paragraph also applies in relation to an order under section 70C(2) (order to prevent foreign control of a newspaper enterprise).”
(14)In Schedule 10 (procedural requirements for certain enforcement undertakings and orders)—
(a)in paragraph 1(b), for “section 75” substitute “section 70C, 75”;
(b)in paragraph 6(b), for “section 75” substitute “section 70C, 75”.