158.This section allows the Secretary of State to make the decision on whether a merger raising public interest considerations should be referred to the CC.
159.Subsection (1) ensures that the Secretary of State only has the power to refer a case if there is an intervention order in force relating to that case and the OFT has produced a report on that case for the Secretary of State.
160.Subsections (2)–(7) provide that the Secretary of State may make a reference if she believes that there could be a ‘relevant merger situation’ that might be adverse to the public interest. In deciding whether to make a reference, she will be bound to accept the views of OFT on any competition-related issues, but may also have regard to the public interest considerations cited in the intervention notice.
161.Thussubsection (6) ensures that the Secretary of State will view a competition problem identified by the OFT as being adverse to the public interest unless she considers this to be outweighed in the overall assessment.
Commentary on Sections Summary and Background Power to make references Section 45: Power of Secretary of State to refer matter to Commission