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The Enterprise Act 2002 (Enforcement Undertakings and Orders) Order 2004

S.I. 2004/2181 · Made 20 August 2004

Original text. legislation.gov.uk does not revise statutory instruments, so later amendments are not shown here. Changes made to it are listed under each provision when known.

COMPETITION

Made 20th August 2004

Laid before Parliament 25th August 2004

Coming into force 4th October 2004

The Secretary of State, in exercise of the powers conferred upon her by paragraphs 15(1) to 15(3), 16(1) and 17(1) of Schedule 24 to the Enterprise Act 2002f1, hereby makes the following Order:

Annotations to the whole text

Footnotes

f1

2002 c. 40.

Contents

  1. 1Title and commencement
  2. 2Interpretation
  3. 3Specification
  4. Signature
  5. Schedule 1Schedule 1
  6. Part I: Mergers
  7. 1Paragraph 1
  8. 2Paragraph 2
  9. 3Paragraph 3
  10. 4Paragraph 4
  11. 5Paragraph 5
  12. 6Paragraph 6
  13. 7Paragraph 7
  14. 8Paragraph 8
  15. 9Paragraph 9
  16. 10Paragraph 10
  17. 11Paragraph 11
  18. 12Paragraph 12
  19. 13Paragraph 13
  20. 14Paragraph 14
  21. 15Paragraph 15
  22. 16Paragraph 16
  23. 17Paragraph 17
  24. 18Paragraph 18
  25. 19Paragraph 19
  26. 20Paragraph 20
  27. 21Paragraph 21
  28. 22Paragraph 22
  29. 23Paragraph 23
  30. 24Paragraph 24
  31. 25Paragraph 25
  32. 26Paragraph 26
  33. 27Paragraph 27
  34. Part II: Monopoly situations
  35. Schedule 2Schedule 2
  36. Explanatory note

1Title and commencement

This Order may be cited as the Enterprise Act 2002 (Enforcement Undertakings and Orders) Order 2004 and shall come into force on 4th October 2004.

2Interpretation

In this Order—

  • “the Act” means the Enterprise Act 2002;

  • “the 1973 Act” means the Fair Trading Act 1973f1;

  • “the Commission” means the Competition Commission;

  • “the DTI” means the Department of Trade and Industry;

  • “the MMC” means the Monopolies and Mergers Commission;

  • “the specified undertakings” means the undertakings described in Schedule 1 hereto; and

  • “the specified orders” means the orders described in Schedule 2 hereto.

3Specification

(1)

The undertakings described in Schedule 1 hereto are hereby specified for the purposes of paragraphs 15(1), 15(3)(a) and 16(1) of Schedule 24 to the Act.

(2)

The orders described in Schedule 2 hereto are hereby specified for the purposes of paragraphs 15(2), 15(3)(b) and 17(1) of Schedule 24 to the Act.

Signature

Gerry Sutcliffe,

Parliamentary Under-Secretary of State for Employment Relations, Competition and Consumers,

Department of Trade and Industry

20th August 2004

Schedule 1

The following undertakings have been given to and accepted by a Minister of the Crown under section 88 of the 1973 Act and are specified undertakings for the purposes of Article 3(1) of this Order:

1

The undertakings given to the Secretary of State by Carlton Communications Plc and Granada plc following the report of the Commission entitled “Carlton Communications plc and Granada plc: A report on the proposed merger”f1.

2

The undertakings given to the Secretary of State by Centrica plc and Centrica Storage Limited following the report of the Commission entitled “Centrica plc and Dynegy Storage Ltd and Dynegy Onshore Processing UK Limited: A report on the merger situation”f1.

3

The undertakings given to the Secretary of State by Wal-Mart Stores Inc, Asda Group Limited, J Sainsbury plc, Tesco plc and Wm Morrison Supermarkets PLC following the report of the Commission entitled “Safeway plc and Asda Group Limited (owned by Wal-Mart Stores Inc); Wm Morrison Supermarkets PLC; J Sainsbury plc; and Tesco plc: A report on the mergers in contemplation”f1.

4

The undertakings given to the Secretary of State by GWR Group plc dated 22 July 2003 following the report of the Commission entitled “Scottish Radio Holdings plc and GWR Group plc and Galaxy Radio Wales and the West Limited: A report on the merger situation” f1.

5

The undertakings given to the Secretary of State by Coloplast A/S, Coloplast Limited and 4C Health Limited following the report of the Commission entitled “Coloplast A/S and SSL International plc: A report on the merger situation”f1.

6

The undertakings given to the Secretary of State by H+H International A/S following the report of the Commission entitled “H+H Celcon Limited and Marley Building Materials Limited: A report on the proposed merger”f1.

7

The undertakings given to the Secretary of State by Lloyds TSB Group plc following the report of the Commission entitled “Lloyds TSB Group plc and Abbey National plc: A report on the proposed merger”f1.

8

The undertakings given to the Secretary of State by Interbrew SA, Interbrew UK Holdings Limited and Interbrew UK Limited following the report of the Commission entitled “Interbrew SA and Bass PLC: A report on the acquisition by Interbrew SA of the brewing interests of Bass PLC”f1.

9

The undertakings given to the Secretary of State by SCR-Sibelco SA following the report of the Commission entitled “SCR-Sibelco SA and Fife Silica Sands Ltd and Fife Resources Ltd: A report on the merger situation”f1.

10

The undertakings given to the Secretary of State by British Sky Broadcasting Group plc following the report of the MMC entitled “British Sky Broadcasting Group plc and Manchester United PLC: A report on the proposed merger”f1.

11

The undertakings given to the Secretary of State by Nutreco Holding NV dated 12 March 2001 following the report of the Commission entitled “Nutreco Holding NV and Hydro Seafood GSP Ltd: A report on the proposed merger”f1.

12

The undertakings given to the Secretary of State by Sylvan International Ltd and Locker Group plc following the report of the Commission entitled “Sylvan International Ltd and Locker Group plc: A report on the merger situation”f1.

13

The undertakings given to the Secretary of State by Alanod Aluminium-Veredlung GmbH & Co and Metalloxyd Ano-Coil Limited dated 31 July 2000 following the report of the Commission entitled “Alanod Aluminium-Veredlung GmbH & Co and Metalloxyd Ano-Coil Limited: A report on the proposed merger”f1.

14

The undertakings given to the Secretary of State by ARRIVA plc dated 7 February 2000 following the report of the MMC entitled “ARRIVA plc and Lutonian Buses Ltd: A report on the merger situation”f1.

15

The undertakings given to the Secretary of State by British Airways plc dated 28 October 1999 following the report of the MMC entitled “British Airways plc and Cityflyer Express Limited: A report on the proposed merger”f1.

16

The undertakings given to the Secretary of State by Hilton Group plc dated 27 October 1999 following the report of the MMC entitled “Ladbroke Group PLC and the Coral betting business: A report on the merger situation”f1.

17

The undertakings given to the Secretary of State by Rockwool Ltd dated 11 October 1999 following the report of the MMC entitled “Rockwool Limited and Owens-Corning Building Products (UK) Limited: A report on the proposed merger”f1.

18

The undertakings given to the Secretary of State by Fresenius AG dated 8 February 1999 following the report of the MMC entitled “Fresenius AG and Caremark Limited: A report on the proposed merger”f1.

19

The undertakings given to the Secretary of State by London Clubs International plc dated 14 December 1998 following the report of the MMC entitled “London Clubs International plc and Capital Corporation PLC: A report on the merger situation”f1.

20

The undertakings given to the Secretary of State by National Express Group PLC dated 15 April 1998 following the report of the MMC entitled “National Express Group PLC and ScotRail Railways Limited: A report on the merger situation”f1.

21

The undertakings given to the Secretary of State by Nutricia Holdings Limited dated 7 April 1997 following the report of the MMC entitled “Nutricia Holdings Ltd and Valio International UK Limited: A report on the merger situation”f1.

22

The undertakings given to the Secretary of State by The Thomas Cook Group Limited dated 29 March 1996 following the report of the MMC entitled “Thomas Cook Group Limited and Interpayment Services Limited: A report on the acquisition by the Thomas Cook Group Limited of the travellers cheques issuing business of Barclays Bank plc”f1.

23

The undertakings given to the Secretary of State by Robert Wiseman Dairies plc dated 28 February 1997 following the report of the MMC entitled “Robert Wiseman Dairies plc and Scottish Pride Holdings plc: A report on the proposed merger”f1.

24

The undertakings given to the Secretary of State by GEHE AG dated 17 October 1996 following the report of the MMC entitled “UniChem PLC/Lloyds Chemists plc and GEHE AG/Lloyds Chemists plc: A report on the proposed mergers”f1.

25

The undertakings given to the Secretary of State by Belfast International Airport Limited dated 30 April 1996 following the report by the MMC entitled “Belfast International Airport Limited and Belfast City Airport Limited: A report on the merger in contemplation”f1.

26

The undertakings given to the Secretary of State by Badgerline Holdings Limited (as amended in February 1996) following the report of the MMC entitled “Badgerline Holdings Ltd and Midland Red West Holdings Ltd: A report on the acquisition by Badgerline Holdings Limited of Midland Red West Holdings Limited”f1.

27

The undertakings given to the Secretary of State by the Co-operative Wholesale Society Limited following the report of the MMC entitled “Co-operative Wholesale Society Limited and House of Fraser PLC: A report on the acquisition by the Co-operative Wholesale Society Limited of the Scottish funerals business of House of Fraser PLC”f1.

Schedule 2

The following orders have been made by a Minister of the Crown under section 56 of the 1973 Act and are specified orders for the purposes of Article 3(2) of this Order:

  • The Foreign Package Holidays (Tour Operators and Travel Agents) Order 2001f1

  • The Foreign Package Holidays (Tour Operators and Travel Agents) Order 2000f2

  • The Supply of New Cars Order 2000f3

  • The Restriction on Agreements and Conduct (Specified Domestic Electrical Goods) Order 1998f4

  • The Films (Exhibition Periods) Order 1996f5

  • The Electrical Contracting (London Exhibition Halls) Order 1995f6

  • The Credit Cards (Price Discrimination) Order 1990f7

  • The Credit Cards (Merchant Acquisition) Order 1990f8

  • The Restriction on Agreements and Conduct (Tour Operators) Order 1987f9

Explanatory note

(This note is not part of the Order)

This Order provides for the transfer of enforcement rights by civil proceedings of certain undertakings given to a Minister of the Crown in relation to merger and monopoly situations under section 88 of the Fair Trading Act 1973 (c. 41) (“the 1973 Act”) and of certain orders in relation to monopoly situations made by a Minister of the Crown under section 56 of the 1973 Act from any person (which would include the Secretary of State) to the Office of Fair Trading (“OFT”) and the Competition Commission (“the Commission”*). It also provides for the rights of third parties who have suffered loss or damage caused by contravention of any such undertaking or order. It further provides for the transfer of the power to supersede, vary or release any such undertaking from the Minister concerned to the Commission; and for the transfer of the power to vary or revoke any such order from the Minister concerned to the Commission.

Article 3(1) provides that the undertakings described in Schedule 1 to this Order are specified for the purpose of paragraphs 15(1), 15(3)(a) and 16(1) of Schedule 24 to the Enterprise Act 2002 (c. 40) (“the Act”). The said paragraphs provide the Secretary of State with order making powers in respect of undertakings that have been given to a Minister of the Crown under section 88 of the 1973 Act. Article 3(2) provides that the orders described in Schedule 2 to this Order are specified for the purpose of paragraphs 15(2), 15(3)(b) and 17(1) of Schedule 24 to the Act. The said paragraphs provide the Secretary of State with order making powers in respect of orders that have been made by a Minister of the Crown under section 56 of the 1973 Act.

The effect of specifying undertakings and orders under paragraph 15(1) and (2) of Schedule 24 to the Act is to apply section 94(1) to (6) of that Act in relation to such undertakings and orders. Section 94(1) to (5) of the Act provides for the rights of third parties who have suffered loss or damage caused by the contravention of any specified undertaking or order; and section 94(6) of that Act provides the OFT with a power to enforce any specified undertaking or order by bringing civil proceedings. The effect of specifying undertakings and orders under paragraph 15(3)(a) and 15(3)(b) of Schedule 24 to the Act is to provide the Commission with equivalent enforcement rights to those of the OFT in relation to any such undertaking or order. Paragraph 15(5) of Schedule 24 to the Act provides in particular that sections 93 and 93A of the 1973 Act will cease to apply in relation to specified undertakings and orders. Sections 93 and 93A of that Act provide for any person to enforce undertakings by bringing civil proceedings.

The effect of specifying undertakings under paragraph 16(1) of Schedule 24 to the Act is to provide the Commission with a power to supersede, vary or release any such undertaking. Paragraph 16(5) of the said schedule provides that where the Commission is given a power by an order made under paragraph 16(1) of that schedule to supersede, vary or release an undertaking accepted by a Minister of the Crown under section 88 of the 1973 Act, the Minister concerned shall accordingly cease to have power under that Act to supersede, vary or release that undertaking.

The effect of specifying orders under paragraph 17(1) of Schedule 24 to the Act is to provide the Commission with a power to vary or revoke any such order. Paragraph 17(5) of the said schedule provides that where the Commission has the power by virtue of an order made under paragraph 17(1) of that schedule to vary or revoke an order made by the Minister of the Crown under section 56 of the 1973 Act, the Minister concerned shall accordingly cease to have the power to do so under that Act.

Copies of the merger undertakings and press notices referred to in Part I of Schedule 1 to this Order may be obtained from Ian Lomas, Consumer and Competition Policy Directorate, DTI (telephone: 020 7215 5009; facsimile: 020 7215 6565; e-mail: [email protected]). Copies of the monopoly undertakings, orders and press notices referred to in Part II of Schedule 1 and Schedule 2 to this Order may be obtained from Marie Cawley, Consumer and Competition Policy Directorate, DTI (telephone: 020 7215 6771; facsimile: 020 7215 6565; e-mail: [email protected]).

A full regulatory impact assessment has not been produced for this instrument as it has no impact on the costs of business.