(2) what (a) powers and (b) discretion he has to decide on different actions from those proposed by the Competition Commission (i) generally and (ii) in respect of divestment of cross-media shareholdings.
[holding answer 22 January 2008]: In cases where the Secretary of State intervenes in a merger on public interest grounds under section 42 of the Enterprise Act 2002 (the Act) and subsequently makes a reference to the Competition Commission under section 45 of the Act on the grounds that the merger gives rise to both competition and public interest issues, the Competition Commission prepares a report in accordance with section 50 of the Act which is submitted to the Secretary of State. This report contains the Competition Commission's decisions on the questions set out in section 47 of the Act. These are:
(a) whether a relevant merger situation has been created;
(b) whether the creation of that situation has resulted, or may be expected to result, in a substantial lessening of competition within any market of the United Kingdom;
(c) whether, taking account only of any substantial lessening of competition and any admissible public interest consideration, that situation operates, or may be expected to operate, against the public interest.
On receipt of such a report, the Secretary of State must take the decisions provided for in sections 54 and 55 of the Act:
(a) whether to make no finding at all in the case on the basis that the public interest consideration specified in the intervention notice is not relevant to a consideration of the merger situation concerned;
(b) whether to make an adverse public interest finding (noting that Section 45(6) of the Act provides that any anti-competitive outcome shall be treated as being adverse to the public interest unless it is justified by one or more than one public interest consideration which is relevant); and
(c) what action to take to remedy, mitigate or prevent any of the effects adverse to the public interest which may have resulted from the relevant merger situation.
In reaching his decisions under section 54 of the Act, the Secretary of State is required, under section 54(7)(a) of the Act, to accept the decisions of the Competition Commission as to whether a relevant merger situation has been created and whether it results in an anti-competitive outcome. In reaching his decisions under section 55 of the Act on remedies, the Secretary of State is required, under section 55(3) of the Act, to have particular regard to the report of the Competition Commission.