Article 12 Transitional provision and savings

(1)

The amendments made by this Order do not affect—

(a)

any obligation which arose before 1st April 2014 under article 9 of the Enterprise Act 2002 (Merger Fees and Determination of Turnover) Order 2003 to pay a fee, or

(b)

any obligation which arose before that date under article 10 of that Order to repay a fee;

and where any such obligation subsisted and had not been discharged immediately before that date the fee in question is payable to or (as the case may be) repayable by the CMA.

(2)

Paragraphs (3) to (6) apply where a fee has been paid before, on or after 1st April 2014 pursuant to an obligation under the Enterprise Act 2002 (Merger Fees and Determination of Turnover) Order 2003 which arose before that date in respect of the giving of a merger notice under section 96 of the Enterprise Act 2002.

(3)

In paragraphs (4) to (6) “the notified arrangements” means the proposed arrangements in relation to which that merger notice was given.

(4)

No fee is payable to the CMA under article 3(b) or (c) of the Enterprise Act 2002 (Merger Fees and Determination of Turnover) Order 2003 where the CMA or (as the case may be) the Secretary of State makes, or decides not to make, a merger reference in relation to the notified arrangements.

(5)

No fee is payable to the CMA under article 3(b) or (c) of that Order where—

(a)

the CMA or (as the case may be) the Secretary of State makes, or decides not to make, a merger reference in relation to the creation, or possible creation, of a relevant merger situation resulting from the carrying into effect of the notified arrangements; and

(b)

that reference, or decision not to make a reference, is made within six months of the date when the obligation to pay the fee in respect of the giving of the merger notice arose.

(6)

The CMA must repay the fee paid in respect of the giving of the merger notice where—

(a)

the CMA decides not to make a merger reference because it does not believe that it is or may be the case that the notified arrangements would, if carried into effect, result in the creation of a relevant merger situation;

(b)

the CMA rejects the merger notice under section 99(5)(d)^f1 of the Enterprise Act 2002 (rejection of merger notice where the notified arrangements are or would result in a concentration with a Community dimension); or

(c)

the CMA decides not to make a merger reference because section 22(3)(e)^f2 or 33(3)(e)^f3 of the Enterprise Act 2002 applies (request to European Commission pursuant to article 22(1) of the EU Merger Regulation).

Annotations

Footnotes

f1: Section 99(5) was amended by paragraph 133(3) of Schedule 5, paragraph 10(3) of Schedule 8 and paragraph 35(3) of Schedule 15 to the Enterprise and Regulatory Reform Act 2013.
f2: Section 22(3)(e) was amended by paragraph 2(2)(b) of the Schedule to the EC Merger Control (Consequential Amendments) Regulations 2004 (S.I. 2004/1079). Section 22 was amended by paragraph 67 of Schedule 5 to the Enterprise and Regulatory Reform Act 2013. There are other amendments to section 22 which are not relevant.
f3: Section 33(3)(e) was amended by paragraph 2(6)(b) of the Schedule to the EC Merger Control (Consequential Amendments) Regulations 2004 (S.I. 2004/1079). Section 33 was amended by paragraph 72 of Schedule 5 to the Enterprise and Regulatory Reform Act 2013. There are other amendments to section 33 which are not relevant.