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(3) In subsections (2), (6) and (7)(b)(i) (consultations with and notifications to the | |
Office of Fair Trading), after the words “the OFT”, in each place where they | |
occur, there shall be inserted “and OFCOM”. | |
(4) In subsection (3)(b)— | |
(a) for “section 31(2)” there shall be substituted “section 276 of the | 5 |
Communications Act 2003”; and | |
(b) for “section 31(1) and (2)” there shall be substituted “that section of that | |
Act of 2003”. | |
(5) In subsection (5)(c) (declaration without notification), after “the OFT” there | |
shall be inserted “or OFCOM or both of them”. | 10 |
(6) In subsection (7) (restriction on exercise by Office of Fair Trading of Chapter III | |
powers)— | |
(a) for “The OFT may not” there shall be substituted “Neither the OFT nor | |
OFCOM may”; and | |
(b) for paragraph (a) there shall be substituted— | 15 |
“(a) the Secretary of State has been notified by the OFT or (as | |
the case may be) by OFCOM of its or their intention to | |
do so; and”. | |
(7) In subsection (8) (notice by Office of Fair Trading to the Secretary of State), for | |
the words from the beginning to “assist” in paragraph (a) there shall be | 20 |
substituted— | |
“(8) Where the OFT or OFCOM is or are proposing to exercise any Chapter | |
III powers in respect of a relevant agreement, it or they must give the | |
Secretary of State particulars of the agreement and such other | |
information— | 25 |
(a) it considers or (as the case may be) they consider will assist”. | |
(8) In subsection (9), in the definition of “Chapter III powers”, for “given to the | |
OFT by” there shall be substituted “of the OFT and of OFCOM under”. | |
Chapter 2 | |
Newspaper mergers | 30 |
Introductory | |
366 Repeal of existing newspaper merger regime | |
Sections 57 to 62 of the Fair Trading Act 1973 (c. 41) (newspaper merger | |
references) shall cease to have effect. | |
367 Repeal of exclusion for newspaper mergers from general merger controls | 35 |
Section 69 of the Enterprise Act 2002 (c. 40) (exclusion of newspaper mergers | |
from references under Part 3 of that Act) shall cease to have effect. | |
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Adaptation for newspaper mergers of main merger regime | |
368 Newspaper public interest considerations | |
After section 58(2) of the Enterprise Act 2002 (c. 40) (considerations specified as | |
public interest considerations for the purpose of the main merger regime) there | |
shall be inserted— | 5 |
“(2A) The need for— | |
(a) accurate presentation of news; and | |
(b) free expression of opinion; | |
in newspapers is specified in this section. | |
(2B) The need for, to the extent that it is reasonable and practicable, a | 10 |
plurality of views in newspapers in each market for newspapers in the | |
United Kingdom or a part of the United Kingdom is specified in this | |
section.” | |
369 Adaptation of role of OFT in initial investigations and reports | |
(1) In section 44(3)(b) of the Enterprise Act 2002 (initial report by OFT in public | 15 |
interest cases must include summary of representations about public interest | |
considerations) after the word “concerned” there shall be inserted “(other than | |
a newspaper public interest consideration)”. | |
(2) After section 44(5) of that Act there shall be inserted— | |
“(5A) The report may, in particular, contain a summary of any | 20 |
representations about the case which have been received by the OFT | |
and which relate to any newspaper public interest consideration | |
mentioned in the intervention notice concerned and which is or may be | |
relevant to the Secretary of State’s decision as to whether to make a | |
reference under section 45.” | 25 |
(3) After section 44(7) of that Act there shall be inserted— | |
“(8) In this Part “newspaper public interest consideration” means any | |
consideration which, at the time of the giving of the intervention notice | |
concerned— | |
(a) is specified in section 58(2A) or (2B); or | 30 |
(b) in the opinion of the Secretary of State, is concerned with | |
newspapers and ought to be specified in section 58. | |
(9) In this Part “newspaper” means a daily, Sunday or local (other than | |
daily or Sunday) newspaper circulating wholly or mainly in the United | |
Kingdom or in a part of the United Kingdom. | 35 |
(10) The Secretary of State may by order amend subsection (9).” | |
370 Additional investigation and report by OFCOM | |
After section 44 of the Enterprise Act 2002 (investigation and report by OFT in | |
public interest cases) there shall be inserted— | |
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“44A Additional investigation and report by OFCOM: newspaper mergers | |
(1) Subsection (2) applies where— | |
(a) the Secretary of State has given an intervention notice in relation | |
to a relevant merger situation; and | |
(b) the intervention notice mentions any newspaper public interest | 5 |
consideration. | |
(2) OFCOM shall, within such period as the Secretary of State may require, | |
give a report to the Secretary of State on the effect of the consideration | |
or considerations concerned on the case. | |
(3) The report shall contain— | 10 |
(a) advice and recommendations on any newspaper public interest | |
consideration mentioned in the intervention notice concerned | |
and which is or may be relevant to the Secretary of State’s | |
decision as to whether to make a reference under section 45; and | |
(b) a summary of any representations about the case which have | 15 |
been received by OFCOM and which relate to any such | |
consideration. | |
(4) OFCOM shall carry out such investigations as they consider | |
appropriate for the purposes of producing a report under this section.” | |
Extension of special public interest regime | 20 |
371 Extension of special public interest regime for certain newspaper mergers | |
(1) Section 59 of the Enterprise Act 2002 (c. 40) (intervention by Secretary of State | |
in special public interest cases) shall be amended as follows. | |
(2) For subsections (3) and (4) (definition of “special merger situation”) there shall | |
be substituted— | 25 |
“(3) For the purposes of this Part a special merger situation has been created | |
if— | |
(a) the condition mentioned in subsection (3A) is satisfied; and | |
(b) immediately before the enterprises concerned ceased to be | |
distinct, either— | 30 |
(i) the conditions mentioned in subsection (3B) were | |
satisfied; or | |
(ii) the condition mentioned in subsection (3C) was | |
satisfied. | |
(3A) The condition mentioned in this subsection is that— | 35 |
(a) no relevant merger situation has been created because of section | |
23(1)(b) and (2)(b); but | |
(b) a relevant merger situation would have been created if those | |
enactments were disregarded. | |
(3B) The conditions mentioned in this subsection are that— | 40 |
(a) at least one of the enterprises concerned was carried on in the | |
United Kingdom or by or under the control of a body corporate | |
incorporated in the United Kingdom; and | |
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(b) a person carrying on one or more of the enterprises concerned | |
was a relevant government contractor. | |
(3C) The condition mentioned in this subsection is that, in relation to the | |
supply of newspapers of any description, at least one-quarter of all the | |
newspapers of that description which were supplied in the United | 5 |
Kingdom, or in a substantial part of the United Kingdom, were | |
supplied by the person or persons by whom one of the enterprises | |
concerned was carried on.” | |
(3) After subsection (6) there shall be inserted— | |
“(6A) For the purpose of deciding whether the proportion of one-quarter | 10 |
mentioned in subsection (3C) is fulfilled with respect to newspapers of | |
any description, the decision-making authority shall apply such | |
criterion (whether value, cost, price, quantity, capacity, number of | |
workers employed or some other criterion, of whatever nature), or such | |
combination of criteria, as the decision-making authority considers | 15 |
appropriate. | |
(6B) References in subsection (3C) to the supply of newspapers shall, in | |
relation to newspapers of any description which are the subject of | |
different forms of supply, be construed in whichever of the following | |
ways the decision-making authority considers appropriate— | 20 |
(a) as references to any of those forms of supply taken separately; | |
(b) as references to all those forms of supply taken together; or | |
(c) as references to any of those forms of supply taken in groups. | |
(6C) For the purposes of subsection (6B) the decision-making authority may | |
treat newspapers as being the subject of different forms of supply | 25 |
whenever— | |
(a) the transactions concerned differ as to their nature, their parties, | |
their terms or their surrounding circumstances; and | |
(b) the difference is one which, in the opinion of the decision- | |
making authority, ought for the purposes of that subsection to | 30 |
be treated as a material difference. | |
(6D) The criteria for deciding when newspapers can be treated, for the | |
purposes of this section, as newspapers of a separate description shall | |
be such as in any particular case the decision-making authority | |
considers appropriate in the circumstances of that case. | 35 |
(6E) The Secretary of State may by order amend the condition mentioned in | |
subsection (3)(b)(ii).” | |
372 Adaptation of role of OFT in special public interest regime | |
(1) Section 61 of the Enterprise Act 2002 (c. 40) (initial investigation and report by | |
OFT in special public interest cases) shall be amended as follows. | 40 |
(2) In subsection (3)(b) (report must include summary of representations about | |
considerations specified in section 58) after the word “concerned” there shall | |
be inserted “(other than a consideration which, at the time of the giving of the | |
notice, was specified in section 58(2A) or (2B))”. | |
(3) In subsection (4) for the words “59(4)(b)” there shall be substituted “59(3B)(b)”. | 45 |
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(4) After subsection (4) there shall be inserted— | |
“(4A) The report may, in particular, contain a summary of any | |
representations about the case which have been received by the OFT | |
and which relate to any consideration which— | |
(a) is mentioned in the special intervention notice concerned and, | 5 |
at the time of the giving of that notice, was specified in section | |
58(2A) or (2B); and | |
(b) is or may be relevant to the Secretary of State’s decision as to | |
whether to make a reference under section 62.” | |
373 Additional investigation and report by OFCOM: special public interest cases | 10 |
After section 61 of the Enterprise Act 2002 (c. 40) (initial investigation and | |
report by OFT in special public interest cases) there shall be inserted— | |
“61A Additional investigation and report by OFCOM: certain newspaper | |
mergers | |
(1) Subsection (2) applies where— | 15 |
(a) the Secretary of State has given a special intervention notice in | |
relation to a special merger situation; and | |
(b) the special intervention notice mentions any consideration | |
which, at the time of the giving of the notice, was specified in | |
section 58(2A) or (2B). | 20 |
(2) OFCOM shall, within such period as the Secretary of State may require, | |
give a report to the Secretary of State on the effect of the consideration | |
or considerations concerned on the case. | |
(3) The report shall contain— | |
(a) advice and recommendations on any consideration which— | 25 |
(i) is mentioned in the special intervention notice | |
concerned and, at the time of the giving of that notice, | |
was specified in section 58(2A) or (2B); and | |
(ii) is or may be relevant to the Secretary of State’s decision | |
as to whether to make a reference under section 62; and | 30 |
(b) a summary of any representations about the case which have | |
been received by OFCOM and which relate to any such | |
consideration. | |
(4) OFCOM shall carry out such investigations as they consider | |
appropriate for the purposes of producing a report under this section.” | 35 |
New general functions in relation to newspaper mergers | |
374 Public consultation in relation to newspaper mergers | |
After section 104 of the Enterprise Act 2002 there shall be inserted— | |
“104A Public consultation in relation to newspaper mergers | |
(1) Subsection (2) applies where the Commission— | 40 |
(a) is preparing— | |
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(i) a report under section 50 on a reference which specifies | |
a newspaper public interest consideration; or | |
(ii) a report under section 65 on a reference which specifies | |
a consideration specified in section 58(2A) or (2B); and | |
(b) is not under a duty to disregard the consideration concerned. | 5 |
(2) The Commission shall have regard (among other things) to the need to | |
consult the public so far as they might be affected by the creation of the | |
relevant merger situation or special merger situation concerned and so | |
far as such consultation is practicable. | |
(3) Any consultation of the kind mentioned in subsection (2) may be | 10 |
undertaken by the Commission by consulting such representative | |
sample of the public or section of the public concerned as the | |
Commission considers appropriate.” | |
375 General information duties in relation to newspaper mergers | |
(1) Section 105 of the Enterprise Act 2002 (c. 40) (general information duties of OFT | 15 |
and Competition Commission) shall be amended as follows. | |
(2) After subsection (1) there shall be inserted— | |
“(1A) Where OFCOM decide to investigate a matter so as to make a report | |
under section 44A or 61A, they shall, so far as practicable, take such | |
action as they consider appropriate to bring information about the | 20 |
investigation to the attention of those whom they consider might be | |
affected by the creation of the relevant merger situation concerned or | |
(as the case may be) the special merger situation concerned.” | |
(3) In subsection (2) (exclusion for merger notices) for the words “Subsection (1) | |
does” there shall be substituted “Subsections (1) and (1A) do”. | 25 |
(4) In subsection (3) (duty of OFT to give requested assistance to Competition | |
Commission)— | |
(a) after the word “Commission”, where it occurs for the first time, there | |
shall be inserted “or OFCOM”; and | |
(b) after the word “Commission”, where it occurs for the second, third and | 30 |
fourth time, there shall be inserted “or (as the case may be) OFCOM”. | |
(5) After subsection (3) there shall be inserted— | |
“(3A) OFCOM shall give the Commission or the OFT— | |
(a) such information in their possession as the Commission or (as | |
the case may be) the OFT may reasonably require to enable the | 35 |
Commission or (as the case may be) the OFT to carry out its | |
functions under this Part; and | |
(b) any other assistance which the Commission or (as the case may | |
be) the OFT may reasonably require for the purpose of assisting | |
it in carrying out its functions under this Part and which it is | 40 |
within the power of OFCOM to give.” | |
(6) In subsection (4) (duty of OFT to give unrequested information to Competition | |
Commission)— | |
(a) after the word “Commission”, where it occurs for the first time, there | |
shall be inserted “or OFCOM”; and | 45 |
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(b) after the word “Commission”, where it occurs for the second and third | |
time, there shall be inserted “or (as the case may be) OFCOM”. | |
(7) After subsection (4) there shall be inserted— | |
“(4A) OFCOM shall give the Commission or the OFT any information in their | |
possession which has not been requested by the Commission or (as the | 5 |
case may be) the OFT but which, in the opinion of OFCOM, would be | |
appropriate to give to the Commission or (as the case may be) the OFT | |
for the purpose of assisting it in carrying out its functions under this | |
Part.” | |
(8) In subsection (5) (duty of OFT and Competition Commission to give requested | 10 |
assistance to the Secretary of State) after the word “OFT”, in both places where | |
it occurs, there shall be inserted “, OFCOM”. | |
(9) In subsection (6) (duty of OFT to give unrequested information to Secretary of | |
State)— | |
(a) after the word “OFT”, where it occurs for the first time, there shall be | 15 |
inserted “and OFCOM”; | |
(b) for the word “its” there shall be substituted “their”; and | |
(c) after the word “OFT”, where it occurs for the second time, there shall be | |
inserted “or (as the case may be) OFCOM”. | |
(10) In subsection (7) (duty to have regard to information given) for the words “or | 20 |
(4)” there shall be substituted “, (3A), (4) or (4A)”. | |
(11) After subsection (7) there shall be inserted— | |
“(7A) OFCOM shall have regard to any information given to them under | |
subsection (3) or (4); and the OFT shall have regard to any information | |
given to it under subsection (3A) or (4A).” | 25 |
376 Advice and information in relation to newspaper mergers | |
After section 106 of the Enterprise Act 2002 (c. 40) there shall be inserted— | |
“106A Advice and information in relation to newspaper mergers | |
(1) The Secretary of State may prepare and publish general advice and | |
information about the considerations specified in section 58(2A) and | 30 |
(2B). | |
(2) The Secretary of State may at any time publish revised, or new, advice | |
or information. | |
(3) Advice or information published under this section shall be prepared | |
with a view to— | 35 |
(a) explaining the considerations specified in section 58(2A) and | |
(2B) to persons who are likely to be affected by them; and | |
(b) indicating how the Secretary of State expects this Part to operate | |
in relation to such considerations. | |
(4) Any advice or information published by the Secretary of State under | 40 |
this section shall be published in such manner as the Secretary of State | |
considers appropriate. | |
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