Section 74 Effect of undertakings under section 73C1

United Kingdom

(1)

The relevant authority shall not make a reference under section 22, 33 F1or 45 in relation to the creation of a relevant merger situation if—

(a)

the F2CMA has accepted an undertaking or group of undertakings under F3section 73(2); and

(b)

the relevant merger situation is the situation by reference to which the undertaking or group of undertakings was accepted.

F4(1A)

The relevant authority may not make a reference under section 45, 68B or 68C in relation to the creation of a relevant merger situation if—

(a)

the CMA has accepted an undertaking or group of undertakings under section 73(3B), and

(b)

the relevant merger situation is the situation by reference to which the undertaking or group of undertakings was accepted.

(2)

F5Subsections (1) and (1A) do not prevent the making of a reference if material facts about relevant arrangements or transactions, or relevant proposed arrangements or transactions, were not notified (whether in writing or otherwise) to the CMA or made public before any undertaking concerned was accepted.

(3)

For the purposes of subsection (2) arrangements or transactions, or proposed arrangements or transactions, are relevant if they are the ones in consequence of which the enterprises concerned ceased or may have ceased, or may cease, to be distinct enterprises.

(4)

In subsection (2) “made public” means so publicised as to be generally known or readily ascertainable.

(5)

In this section “relevant authority” means—

(a)

in relation to a possible reference under section 22 F6, 33, 68B or 68C, the F7CMA; and

(b)

in relation to a possible reference under section 45, the Secretary of State.

Annotations

Textual amendments

F1: Words in s. 74(1) substituted (24.7.2024) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(3), Sch. 6 para. 9(2)(a)
F2: Word in s. 74(1)(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 114 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)
F3: Words in s. 74(1)(a) substituted (24.7.2024) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(3), Sch. 6 para. 9(2)(b)
F4: S. 74(1A) inserted (24.7.2024) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(3), Sch. 6 para. 9(3)
F5: Words in s. 74(2) substituted (24.7.2024) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(3), Sch. 6 para. 9(4)
F6: Words in s. 74(5)(a) substituted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(j), Sch. 16 para. 14(3)
F7: Word in s. 74(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 114 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications

C1: Pt. 3 modified (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 4 para. 56; S.I. 2014/416, art. 2(1)(c) (with Sch.)

Notes on Part 3

Modifications

C1: Pt. 3 (ss. 22-130) modified (20.6.2003) by 1998 c. 41, Sch. 7 para. 20(3) (as substituted by Enterprise Act 2002 (c. 40), ss. 185, 279, Sch. 11 para. 11(2)-(4)(8); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)
C2: Pt. 3 applied (with modifications) (29.12.2004) by Water Industry Act 1991 (c. 56), Sch. 4ZA paras. 1, 2 (as inserted by Enterprise Act 2002 (c. 40), ss. 70(2), 279, Sch. 6); S.I. 2004/3233, art. 2, Sch. (with transitional provisions and savings in arts. 3-5)
C3: Pt. 3 (ss. 22-130) applied (1.10.2005) by Water Industry Act 1991 (c. 56), s. 17M(4) (as inserted by Water Act 2003 (c. 37), ss. 56, 105(3), Sch. 4 para. 2); S.I. 2005/2714, art. 2(h) (with Sch. para. 5)
C4: Pt. 3 applied (1.10.2005) by Water Industry Act 1991 (c. 56), s. 17Q(9) (as inserted by Water Act 2003 (c. 37), ss. 56, 105(3), Sch. 4 para. 2); S.I. 2005/2714, art. 2(h) (with Sch. para. 5)
C5: Pt. 3 applied in part (N.I.) (1.4.2007) by The Water and Sewerage Services (Northern Ireland) Order 2006 (S.I. 2006/3336 (N.I. 21)), arts. 1(2)(3), 23(4), 27(9); S.R. 2007/194, art. 2(2), Sch. 1 Pt. 2 (with Sch. 2)
C6: Pt. 3 excluded in part (29.9.2008) by The Bradford & Bingley plc Transfer of Securities and Property etc. Order 2008 (S.I. 2008/2546), arts. 1(2), 40
C7: Pt. 3 modified (1.7.2012) by Health and Social Care Act 2012 (c. 7), ss. 79, 306(4); S.I. 2012/1319, art. 2(3)
C9: Pt. 3 modified (31.12.2020) by The Competition (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/93), reg. 1(1), Sch. 4 paras. 28-33; 2020 c. 1, Sch. 5 para. 1(1)
C10: Pt. 3 excluded (28.6.2022) by 1992 c. 13, s. 56E(9B) (as inserted (E.W.) by Skills and Post-16 Education Act 2022 (c. 21), ss. 23(3)(f), 36(2))
C11: Pt. 3 excluded (28.6.2022) by 1992 c. 13, s. 56A(9B) (as inserted (E.W.) by Skills and Post-16 Education Act 2022 (c. 21), ss. 23(2)(f), 36(2))
C12: Pt. 3 modified (1.7.2022) by 2006 c. 41, s. 72A (as inserted by Health and Care Act 2022 (c. 31), ss. 83(1), 186(6); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30))
C13: Pt. 3 modified (E.W.) (29.12.2004) by The Water Mergers (Modification of Enactments) Regulations 2004 (S.I. 2004/3202), regs. 2-35 (as amended (1.4.2014) by S.I. 2014/549, art. 1(1), Sch. 1 para. 22 (with art. 3); (18.12.2015) by S.I. 2015/1936, regs. 1, 3-20; (6.12.2023) by S.I. 2023/1185, arts. 1(2), 9-27); and (23.8.2024) by S.I. 2024/840, regs. 1(1), 3-7; and (1.1.2025) by S.I. 2024/1234, regs. 1(1), 3-10 (with reg. 11))

Notes on Powers exercisable before references under section 22, 33, 68B or 68C

Textual amendments

F1: Words in Pt. 3 Ch. 4 heading substituted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(j), Sch. 16 para. 10