Reference for the Arla Foods amba / Express Dairies to
the Competition Commission
Terms of Reference
Whereas it appears to the Secretary of State that it is or
may be the fact that arrangements are in progress or in contemplation
which, if carried into effect, will result in the creation
of a merger situation qualifying for investigation, as defined
in section 64(8) of the Fair Trading Act 1973 (“the
Act”), in that:
a. enterprises carried on by or under the control of Arla
Foods amba will cease to be distinct from enterprises carried
on by or under the control of Express Dairies plc (one at
least of which is carried on in the United Kingdom); and
b. the value of the assets to be taken over exceeds £70
million.
Whereas the said arrangements as described in paragraph (a)
if carried out will result in a concentration with a Community
dimension within the meaning of Council Regulation (EEC) no
4064/89 of 21 December 1989 on the control of concentrations
between undertakings (“the Regulation”);
Whereas the Commission of the European Communities has, pursuant
to Article 9(3)(b) of the Regulation, referred the case to
the competition authorities of the United Kingdom;
Whereas the old law as defined in paragraph 13(10) of Schedule
24 to the Enterprise Act 2002 applies to this case by virtue
of paragraph 13(8) of the Schedule as notification to the
European Commission under the Regulation occurred on 16th
April 2003 which was before the appointed day within the meaning
of paragraph 19 (1) of the Schedule:
Now, therefore, the Secretary of State, in exercise of her
powers under sections 64, 69 and 75 of the Act, hereby refers
to the Competition Commission (“the Commission”),
for investigation and report within a period ending on 24th
September 2003, the following questions:
(i) whether arrangements are in progress or in contemplation
as described in paragraph (a) above which, if carried into
effect, will result in the creation of a merger situation
qualifying for investigation;
(ii) if events so require, whether the actual results of
those arrangement are the creation of such a situation;
and
(iii) if so, in either case, whether the creation of that
situation may be expected to operate or (if events so require)
operates against the public interest.
In relation to the question in paragraph (i) above the Commission
shall exclude from consideration one of paragraphs (a) and
(b) of section 64(1) of the Act if they find the other satisfied.
In relation to the question in paragraph (iii) above, the
Commission shall limit their consideration to such elements
in, or possible consequences of, the creation of that situation
which relates to the market for supply of fresh processed
milk in the United Kingdom.
07 July 2003
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