Legislation – Digital Markets, Competition and Consumers Act 2024

“Schedule 6ADetermination of when a foreign state newspaper merger situation has been created

Section 70A

Application of sections 23 to 29

1

(1)

Sections 23 to 29 apply for the purposes of Chapter 3A of Part 1, subject to the following modifications.

(2)

Section 23 is to be read as if—

(a)

in subsection (1), for the amount in paragraph (b), there were substituted “£2 million”;

(b)

in subsection (9), for paragraphs (a) and (b), there were substituted—

“(a)

in relation to the giving of a foreign state intervention notice, the time when the notice is given;

(b)

in relation to the giving of a report by the CMA under section 70B, the time of the giving of the report.”

(3)

Section 24 is to be read as if—

(a)

for subsection (1)(a) there were substituted—

“(a)

the two or more enterprises ceased to be distinct enterprises before the day on which—

(i)

in a case to which section 23(9)(a) applies, the foreign state intervention notice relating to them is given, or

(ii)

in a case to which section 23(9)(b) applies, the CMA gives its report relating to them under section 70B,

and did so not more than four months before that day; or”;

(b)

in subsection (1)(b), after “distinct enterprises” there were inserted “, including facts about whether or the extent to which a foreign power is able to control or influence the policy of a person carrying on a newspaper enterprise as a result of the enterprises ceasing to be distinct enterprises,”;

(c)

the reference to the CMA in subsection (2)(a) included a reference to the Secretary of State;

(d)

for subsection (2)(b) there were substituted—

“(b)

it is given to the Secretary of State or the CMA more than four months before the day on which—

(i)

in a case to which section 23(9)(a) applies, the foreign state intervention notice relating to them is given, or

(ii)

in a case to which section 23(9)(b) applies, the CMA gives its report relating to them under section 70B; or

(c)

the facts are made public more than four months before the day on which—

(i)

in a case to which section 23(9)(a) applies, the foreign state intervention notice relating to them is given, or

(ii)

in a case to which section 23(9)(b) applies, the CMA gives its report relating to them under section 70B.”.

(4)

Section 25 is to be read as if—

(a)

subsections (4) and (5) were omitted;

(b)

the powers to extend time-limits under section 25 were not exercisable by the CMA before the giving of a foreign state intervention notice by the Secretary of State.

(5)

Section 26 is to be read as if—

(a)

in subsection (3)—

(i)

“materially” were omitted;

(ii)

for “may, for the purposes of subsections (1) and (2), be treated” there were substituted “is to be treated, for the purposes of subsections (1) and (2),”;

(b)

for subsection (4) there were substituted—

“(4)

For the purposes of subsection (1), in so far as it relates to bringing two or more enterprises under common control, where a foreign power is already able to control or influence the policy of a person carrying on a newspaper enterprise to some extent, the foreign power is to be treated as bringing the newspaper enterprise under its control if anything is done which results in the foreign power being able to control or influence the policy of that person to a greater extent (whether by virtue of acquiring more shares or voting rights in the person, directly or indirectly, or otherwise).”

(6)

Section 27 is to be read as if—

(a)

references to the “decision-making authority” were to “the CMA or the Secretary of State”;

(b)

in subsection (5), for “a reference” there were substituted “deciding whether or when a foreign state newspaper merger situation has been created”.

(7)

Section 28 is to be read as if, in subsection (4), the reference to the “decision-making authority” were to “the CMA or the Secretary of State”.

(8)

Section 29 is to be read as if—

(a)

in subsection (1)—

(i)

the reference to the “decision-making authority” were to “the CMA or the Secretary of State”;

(ii)

for “a reference” there were substituted “deciding whether or when a foreign state newspaper merger situation has been created”;

(b)

in subsection (2)(a)(i) “materially” were omitted;

(c)

in subsection (2)(a)(ii), for “degree” there were substituted “extent”;

(d)

subsection (2)(b) and (3) were omitted.

Application of the Enterprise Act 2002 (Anticipated Mergers) Order 2003 (S.I. 2003/1595)

2

(1)

The Enterprise Act 2002 (Anticipated Mergers) Order 2003 applies for the purposes of Chapter 3A of Part 1, subject to the following modifications.

(2)

In Article 3, the words before paragraph (a) are to be read as if, for “in relation to references and notices”, there were substituted “for the purposes of Chapter 3A of Part 1 of the Act”.

(3)

Article 3(a) is to be read as if—

(a)

in the substituted version of section 27(5), for “a reference” there were substituted “deciding whether or when a foreign state news paper merger situation will be created”;

(b)

the substituted version of section 27(6)(a)(i), for “the reference” there were substituted “the foreign state intervention notice relating to the situation”.

(4)

Article 3(b) is to be read as if—

(a)

in the substituted section 29(2)(a)(i), “materially” were omitted;

(b)

in the substituted section 29(2)(a)(ii), for “degree” there were substituted “extent”;

(c)

in the substituted section 29(4), for “the reference” there were substituted “the foreign state intervention notice”.

Schedule 6BControl or influence of a person by a foreign power

Section 70A

Part 1Conditions for control or influence

1

(1)

A foreign power is able to control or influence the policy of a person for the purposes of section 70A if one or more of the following conditions is met.

(2)

Condition 1 is that the foreign power holds, directly or indirectly, any of the shares in the person.

(3)

Condition 2 is that the foreign power holds, directly or indirectly, any of the voting rights in the person.

(4)

Condition 3 is that the foreign power holds the right, directly or indirectly, to appoint or remove an officer of the person.

(5)

Condition 4 is that the foreign power has the right or ability to direct, control or influence to any extent, the person’s policy or activities (in whole or in part, and whether directly or indirectly), despite not meeting condition 1, 2 or 3.

(6)

Condition 5 is that—

(a)

the trustees of a trust, or the members of a partnership, unincorporated association or other entity, that is not a legal person under the law by which it is governed, would, if they were a foreign power, meet one or more of conditions 1 to 4 (in their capacity as such) in relation to the person, and

(b)

the foreign power has the right or ability to direct, control or influence to any extent the activities of that trust or entity (in whole or in part, and whether directly or indirectly), or has any other interest in, or right over or in relation to, the trust or entity, or any of the trustees of the trust or the members of the entity, whether directly or indirectly.

2

In this Schedule, “officer”—

(a)

in relation to a body corporate, means a director, member of the committee of management, chief executive, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity;

(b)

in relation to a partnership, means a partner, a person purporting to act as a partner or a person concerned in the management or control of the partnership or who purports to act in the capacity of a person so concerned;

(c)

in relation to an unincorporated association other than a partnership, means a person who is concerned in the management or control of the association or purports to act in the capacity of a person so concerned.

Part 2Interpretation

Interpretation

3

This Part makes provision about the interpretation of this Schedule.

Joint interests

4

If a foreign power holds a share or right jointly with another person (whether or not a foreign power), each of those persons is to be taken to hold that share or right.

Joint arrangements

5

(1)

If shares or rights held by a foreign power and shares or rights held by another person (whether or not a foreign power) are the subject of a joint arrangement between those persons, each of those persons is to be taken to hold the combined shares or rights of both persons.

(2)

A “joint arrangement” is an arrangement between the holders of shares (or rights) that they will exercise all or substantially all the rights conferred by their respective shares (or rights) jointly in a way that is pre-determined by the arrangement.

(3)

For the meaning of “arrangement”, see paragraph 12.

Calculating shareholdings

6

(1)

In relation to a person that has a share capital, a reference to holding any of the shares in that person is to holding any shares comprised in the issued share capital of that person.

(2)

In relation to a person that does not have a share capital, a reference to holding any of the shares in that person is to holding a right to share to any extent in the capital or, as the case may be, profits of that person.

Voting rights

7

(1)

A reference to the voting rights in a person is to the rights conferred on shareholders in respect of their shares (or, in the case of a person not having a share capital, on members) to vote at general meetings of the person on all or substantially all matters.

(2)

In relation to a person that does not have general meetings at which matters are decided by the exercise of voting rights, a reference to exercising voting rights in the person is to be read as a reference to exercising rights in relation to the person that are equivalent to those of a person entitled to exercise voting rights in a company.

8

In applying this Schedule, voting rights in a person held by the person itself are to be disregarded.

Shares or rights held “indirectly”

9

(1)

A foreign power holds a share “indirectly” if the foreign power has any stake in a person and that person—

(a)

holds the share in question, or

(b)

is part of a chain of persons—

(i)

each of which (other than the last) has any stake in the person immediately below it in the chain, and

(ii)

the last of which holds the share.

(2)

A foreign power holds a right “indirectly” if the foreign power has any stake in a person and that person—

(a)

holds that right, or

(b)

is part of a chain of persons—

(i)

each of which (other than the last) has any stake in the person immediately below it in the chain, and

(ii)

the last of which holds that right.

(3)

For the purposes of sub-paragraphs (1) and (2), a person (“A”) has “any stake” in another person (“B”) if—

(a)

A holds any shares or voting rights in B,

(b)

A is a member of B and has the right to appoint or remove an officer of B,

(c)

A is a member of B and controls alone, or pursuant to an agreement with other shareholders or members, any of the voting rights in B, or

(d)

A has the right or ability to control or influence B to any extent, despite not being within paragraph (a), (b) or (c).

Shares held by nominees

10

A share held by a person as a nominee for another is to be treated as held by the other (and not by the nominee).

Rights treated as held by person who is able to control their exercise

11

(1)

Where a person controls a right, the right is to be treated as held by that person (and not by the person who in fact holds the right, unless that person also controls it).

(2)

A person “controls” a right if, by virtue of any arrangement between that person and others, the right is exercisable only—

(a)

by that person,

(b)

in accordance with that person’s directions or instructions, or

(c)

with that person’s consent or concurrence.

Arrangements

12

(1)

For the purposes of this Schedule, “arrangement” includes—

(a)

any scheme, agreement or understanding, whether or not it is legally enforceable, and

(b)

any convention, custom or practice of any kind.

(2)

But something does not count as an arrangement unless there is at least some degree of stability about it (whether by its nature or terms, the time it has been in existence or otherwise).

Rights exercisable only in certain circumstances etc

13

(1)

Rights that are exercisable only in certain circumstances are to be taken into account only—

(a)

where the circumstances have arisen, and for so long as they continue to obtain, or

(b)

when the circumstances are within the control of the person having the rights.

(2)

But rights that are exercisable by an administrator or by creditors while a person is in relevant insolvency proceedings are not to be taken into account even while the person is in those proceedings.

(3)

“Relevant insolvency proceedings” means—

(a)

administration within the meaning of the Insolvency Act 1986,

(b)

administration within the meaning of the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)), or

(c)

proceedings under the insolvency law of another country or territory during which a person’s assets and affairs are subject to the control or supervision of a third party or creditor.

(4)

Rights that are normally exercisable but are temporarily incapable of exercise are to continue to be taken into account.

Rights attached to shares held by way of security

14

Rights attached to shares held by way of security provided by a person are to be treated for the purposes of this Schedule as held by that person—

(a)

where apart from the right to exercise them for the purpose of preserving the value of the security, or of realising it, the rights are exercisable only in accordance with that person’s instructions, and

(b)

where the shares are held in connection with the granting of loans as part of normal business activities and apart from the right to exercise them for the purpose of preserving the value of the security, or of realising it, the rights are exercisable only in that person’s interests.

Part 3Power to amend circumstances in which there is control or influence

15

(1)

The Secretary of State may by regulations make provision—

(a)

to change (by increasing or decreasing) the proportion of shares or rights which a foreign power must hold in a person carrying on a newspaper enterprise, whether directly or indirectly, in order for the foreign power to be able to control or influence the policy of a person for the purposes of section 70A;

(b)

to change (by increasing or decreasing) the proportion of shares or rights which is to be held by persons in a chain of persons for the purposes of determining whether shares or rights are held indirectly;

(c)

about assumptions which are to be made when determining whether a foreign power is able to control or influence the policy of a person, including assumptions framed by reference to the ownership of shares or voting rights by any person;

(d)

about the extent to which a foreign power needs to be able to control or influence the policy of a person in order to control or influence that policy for the purposes of section 70A, including provision about a foreign power that is already able to control or influence the policy of a person to some extent being able to control or influence that policy to a greater extent;

(e)

to change or supplement Part 1 of this Schedule so as to include circumstances (for example, circumstances involving more complex structures) that give a foreign power a level of control or influence in relation to the policy of a person broadly similar to the level of control or influence given by the conditions in paragraph 1;

(f)

in consequence of any provision made by virtue of paragraph (e), to change or supplement Part 2 of this Schedule so that circumstances specified in that Part in which a person is to be regarded as holding an interest in another person correspond to any of the conditions in paragraph 1, or would do so but for the extent of the interest.

(2)

The provision that may be made under this paragraph, read with section 124(2)(a), includes—

(a)

different provision for different descriptions of foreign power, and

(b)

different provision for different persons or descriptions of person in a chain of persons.

(3)

Regulations under this paragraph may, among other things—

(a)

confer a discretion on the CMA;

(b)

make provision having effect on or after 13 March 2024.”