The Enterprise Act 2002 (Mergers) (Interim Measures: Financial Penalties) (Determination of Control and Turnover) Order 2014

JurisdictionEngland & Wales
CitationSI 2014/533

2014No. 533

COMPETITION

The Enterprise Act 2002 (Mergers) (Interim Measures: Financial Penalties) (Determination of Control and Turnover) Order 2014

6thMarch2014

10thMarch2014

1stApril2014

The Secretary of State makes the following Order in exercise of the powers conferred by sections 94A(3), (4) and (5) and 124(2) of the Enterprise Act 2002( 1).

Citation and commencement

1. This Order may be cited as the Enterprise Act 2002 (Mergers) (Interim Measures: Financial Penalties) (Determination of Control and Turnover) Order 2014 and comes into force on 1st April 2014.

Control of an enterprise

2. (1) For the purposes of section 94A(2) of the Enterprise Act 2002 (penalty for breach of interim undertakings and orders), 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 group of persons;(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 to 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 group of persons, and P (whether or not P is a member of that partnership, association or group) is able directly or indirectly to control or materially to influence the policy of that partnership, association or group 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 to influence the policy of that individual in carrying on the enterprise.

(2) For the purposes of paragraph (1)(b) and (c), 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( 2); 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.

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

(4) For the purposes of paragraph (1)(c), (d) and (e) the appropriate authority may, having regard to all the circumstances, determine whether any person is able directly or indirectly to control or materially to influence the policy of a body corporate or the policy of an individual or a partnership or an unincorporated association or group of persons in carrying on an enterprise.

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

Turnover of an enterprise

3. (1) For the purposes of section 94A(2) of the Enterprise Act 2002 (penalty for breach of interim undertakings and orders), the turnover of an enterprise is the turnover of the enterprise in its relevant accounting period, determined in accordance with the Schedule.

(2) An enterprise's "relevant accounting period" is its accounting period immediately preceding the date on which the interim measure in question came into force.

(3) An "accounting period" of an enterprise is a period of more than six months in respect of which accounts are prepared or required to be prepared in relation to the enterprise.

(4) Where for the purposes of paragraph (1) the figures necessary for the appropriate authority to calculate the turnover of an enterprise in its relevant accounting period are not available to the appropriate authority when the appropriate authority decides to impose the penalty under section 94A(1) of the Enterprise Act 2002, the turnover of the enterprise is its turnover in its accounting period immediately preceding its...

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