The Enterprise Act 2002 (Mergers and Market Investigations) (Determination of Control and Turnover for Penalties) Regulations 2024

Control of an enterprise

2.—(1) This regulation applies for the purposes of determining when an enterprise(1) is to be treated as controlled by a person for the purposes of the following sections of the Act—

(a) section 94AB(3) and (4) (amount of penalties under section 94AA: enforcement of undertakings and orders);

(b) section 111(4) and (4A) (amount of penalties under section 110: enforcement of powers under section 109)(2);

(c) section 167B(3) and (4) (amount of penalties under section 167A: enforcement of undertakings and orders: imposition of penalties);

(d) section 174D(4) and (4A) (amount of penalties under section 174A: enforcement of powers under section 174: attendance of witnesses and production of documents etc.)(3).

(2) An enterprise is to be treated as controlled by a person (“P”) where—

(a) the enterprise is carried on by P otherwise than in partnership or as a member of an unincorporated association or body,

(b) the enterprise is carried on by a body corporate in which P has a controlling interest,

(c) the enterprise is carried on by a body corporate, and P is able directly or indirectly to control, or materially influence, the policy of that body corporate without having a controlling interest in that body corporate,

(d) the enterprise is carried on by a partnership or by an unincorporated association or body, and P (whether or not P is a member of that partnership, association or body) is able directly or indirectly to control, or materially influence, the policy of that partnership, association or body in carrying on the enterprise, or

(e) the enterprise is carried on by an individual, and P is able directly or indirectly to control, or materially influence, the policy of that individual in carrying on the enterprise.

(3) For the purposes of paragraph (2)(b), P has a controlling interest in a body corporate if P—

(a) is a parent undertaking of that body corporate within the meaning of section 1162 of the Companies Act 2006 (parent and subsidiary undertakings)(4), or

(b) would be a parent undertaking of that body corporate within the meaning of that section if P were an undertaking within the meaning of section 1161 of that Act (meaning of “undertaking” and related expressions),

and the reference in paragraph (2)(c) to P not having a controlling interest is to be construed accordingly.

(4) For the purposes of paragraph (3), subsections (2)(c) and (4)(a) of section 1162 of the Companies Act 2006 are to be disregarded.

(5) For the purposes of paragraph (2)(c), (d) and (e) the relevant authority may determine whether any person is able to control directly or indirectly, or materially influence, the policy of a body corporate, or the policy of a partnership, an unincorporated association or body, or an individual (as the case may be) in carrying on an enterprise.

(6) References in this regulation to a body corporate include a body incorporated outside the United Kingdom; and references to a partnership or an unincorporated association or body include a partnership or unincorporated association or body formed or established, or having any members incorporated, formed or established, outside the United Kingdom.

(1)

Section 129(1) of the Enterprise Act 2002 defines “enterprise” for the purposes of Part 3; section 183(1) of that Act applies the same definition of “enterprise” for the purposes of Part 4.

(2)

Section 111(4) is amended, and sub-section (4A) is inserted, by paragraph 17 of Schedule 10 to the 2024 Act.

(3)

Section 174D(4) is amended, and sub-section (4A) is inserted, by paragraph 29 of Schedule 10 to the 2024 Act.

(4)

2006 c. 46.