Part 2: Competition Chapter 5: Miscellaneous Schedule 13: Service and extra-territoriality of notices under CA98 and EA 2002
Schedule 13 makes provision regarding the service of documents and the extraterritorial application of notices under Part 1 of the Competition Act 1998 and Parts 3 and 4 the Enterprise Act 2002.
	Paragraph 1 of Schedule 13 replaces the existing section 126 of the Enterprise Act 2002 with comprehensive provisions on the service of documents which reflect modern business practices. For example, comprehensive provisions on service of documents by email reflect its everyday use as a method of communication by businesses and individuals.
	New section 126(1) provides that the section applies in respect of documents required or authorised to be served under Part 3 on a person by the CMA, OFCOM, or the Secretary of State, each of whom exercise functions under that Part.
	New section 126(2) sets out the methods of service which may be used: either delivering it to the person, leaving at their proper address, sending it by post to that address, or sending by e-mail to the person’s email address.
	New sections 126 (3), (4) and (5) make specific provision in relation to the service of documents on a body corporate, a partnership or an unincorporated body or association. In particular, these subsections set out specific classes of person (legal or natural) to whom a notice may be given to so as to effect service on the body corporate, a partnership or an unincorporated body or association.
	New sections 126 (6) and (7) make provision to determine what is to be considered as a person’s "proper address" for the purpose of subsection (2).
	New section 126(8) makes provision regarding the email address which may be used for the purposes of subsection (2).
	New section 126 (9) makes provision regarding service which is to be effected outside the United Kingdom.
	New section 126(11) provides that section 126 does not limit any other lawful means of serving a document on a person.
	Paragraph 2 of Schedule 13 inserts a new section 44A into the Competition Act 1998 which applies the new section 126 of the Enterprise Act 2002 to the giving of notices under Chapter 3 of Part 1 of the Competition Act 1998. Chapter 3 of Part 1 sets out the powers of the CMA (and sector regulators where relevant) to investigate and enforce the prohibitions in Part 1 of the Competition Act 1998.
	Paragraphs 3 to 14 make amendments to the legislation by virtue of which sector regulators are able to exercise the specified functions in Part 1 of the Competition Act 1998 on a concurrent basis with the CMA. That legislation each contains a provision which glosses references to the CMA in Part 1 of the Competition Act 1998 so that they are read appropriately as a reference to the sector regulator concerned. Paragraphs 3 to 14 amend the legislation to ensure that the gloss applies to provisions of the Enterprise Act 2002 applied by Part 1 of the Competition Act 1998, as it applies to provisions in the Competition Act 1998 itself. This ensures that references to the CMA in section 126 of the Enterprise Act 2002, as applied by the new section 44A of the Competition Act 1998, are read as a reference to the sector regulator concerned.
	Paragraph 15 of Schedule 13 inserts a new section 44B into the Competition Act 1998.
	New section 44B(1) provides that the new section applies to the exercise of the CMA’s power to give a person a notice under section 26 (Investigations: power to require documents and information) and section 40ZD (Information relating to transferred EU anti-trust commitments and transferred EU anti-trust direction).
	New section 44B(2) sets out that the powers may be used, to give the notice to a person outside the United Kingdom (subject to the conditions in new subsections (3) and (4), and to require the production of a specified document or the provision of specified information held outside the United Kingdom.
	New section 44B(3) provides that the power to give a section 26 notice to a person outside the United Kingdom may only be exercised if the person’s activities are being investigated as part of an investigation under section 25, or they have a "UK connection". Persons whose activities are being investigated as part of an investigation under section 25 includes parties to an anti-competitive agreement etc. whose activities are being investigated in relation to the Chapter I prohibition, and those whose conduct is being investigated in relation to the Chapter II prohibition. In effect, this allows information to be required to be produced from those persons who are the subject of an enforcement investigation and, also, third parties where there is a sufficient UK connection.
	New section 44B(4) makes provision regarding the CMA’s power under section 40ZD of the Competition Act 1998. Section 40ZD enables the CMA to issue a notice under section 40ZD to a person outside of the United Kingdom if that person is bound by transferred EU anti-trust commitments (within the meaning of section 40ZA of the Competition Act 1998) or is subject to a transferred EU anti-trust direction (within the meaning of that same section).
	New section 44B(5) sets out the circumstances in which a person has a UK connection for the purposes of the new section 44B(2)(b). A third party, that is a person other than an enforcement subject, may only be given a section 26 notice outside the United Kingdom if they are a United Kingdom national, an individual habitually resident in the United Kingdom, a body incorporated under the law of the United Kingdom or any part of the United Kingdom, or they carry on business in the United Kingdom.
	New section 44B(6) defines a United Kingdom national for the purposes of sub-section (5)(a).
	New section 44B(7) provides that nothing in the new section 44B of the Competition Act 1998 is to be taken to limit any other power of the CMA to give a notice under section 26 or 40ZD to a person outside the United Kingdom. Section 44B(7) makes provision so that to the extent that the CMA has a broader power, absent this section, to gather information extra-territorially under section 26 of the Competition Act 1998, section 44B does not limit such power.
	Paragraph 16 of Schedule 13 inserts a new section 109B into Part 3 of the Enterprise Act 2002 to make provision for the extra-territorial reach of information notices under section 109.
	New section 109B(1) provides that the section applies to the exercise of the CMA’s power to give a person a notice under section 109(2) or (3), that is for the production of specified documents, or the supply of such estimates, forecasts, returns or other information as may be specified or described in the notice.
	New section 109B(2) sets out that the powers may be used to give the notice to a person outside the United Kingdom (subject to the conditions in new subsection (3)), and to require the production of a specified document or the provision of specified information held outside the United Kingdom.
	New section 109(3)(a) provides that a notice may be issued to a person outside of the United Kingdom where that person is or was, part of, or involved with or carrying on an enterprise which is, or has been involved in a transaction in circumstances which have been or may be, the subject of a reference under sections 22, 33, 45 62, 62B or 62C of the Enterprise Act 2002 or the subject of a foreign state intervention notice given to the CMA under section 70A of the Enterprise Act 2002. This allows the CMA to exercise the section 109 information gathering powers extraterritorially in relation to any person involved in a merger which either has been, or may be, the subject of a reference, so allowing it to use the power for the purposes of both reviewing merger transactions, and for the purpose of any subsequent enforcement action following a review. This includes mergers where there has been a public interest intervention or special intervention notice as well as mergers reviewed under the energy network merger regime.
	New section 109B(3)(b) allows the CMA to send notices extraterritorially to third parties to merger investigations if that third party is a person that has a UK connection as defined in the new section 109B (which is in identical terms to the definition of UK connection under the new section 44B of the Competition Act 1998).
	New section 109B(5) provides that nothing in the new section 109B is to be taken to limit any other power of the CMA to give a notice under section 109(2) or (3) to a person outside the United Kingdom. Section 109B(5) makes provision so that to the extent that the CMA has a broader power, absent this section, to gather information extra-territorially under section 109 of the Enterprise Act 2002, section 109B does not limit such power.
	Paragraph 17 of Schedule 13 inserts a new section 174ZA into Part 4 of the Enterprise Act 2002 to make provision for the extra-territorial reach of information notices under section 174.
	New section 174ZA(1) provides that the section applies to the exercise of the CMA’s power to issue notices under section 174(4) or (5) of the Enterprise Act 2002, that is for the production of specified documents, or the supply of such estimates, forecasts, returns or other information as may be specified or described in the notice. Subsection (1) is self-explanatory.
	New section 174ZA(2) sets out that the powers may be used to give the notice to a person outside the United Kingdom where they have a UK connection, and to require the production of a specified document or the provision of specified information held outside the United Kingdom. The requirement for a UK connection when serving a notice outside the United Kingdom is in line with the amendments set out above in the new section 44B of the Competition Act 1998 and section 109B of the Enterprise Act 2002 but reflects the fact that in the context Part 4 of the Enterprise Act 2002, there are no specific enforcement subjects who are suspected of infringing the law or specific enterprises ceasing to be distinct pursuant to a merger.
	Subsection (3) sets out the circumstances in which a person has a UK connection for the purposes of the new section 174ZA of the Enterprise Act 2002.
	New section 174ZA(5) provides that nothing in the new section 174ZA is to be taken to limit any other power of the CMA to give a notice under section 174(4) or (5) to a person outside the United Kingdom. Section 174ZA makes provision so that to the extent that the CMA has a broader power, absent this section, to gather information extra-territorially under section 174 EA02, section 174ZA does not limit such power.