Competition Act 1998

9 (1) [F1 The Chapter I prohibition does not apply to an agreement to the extent to which it relates to production of or trade in an agricultural product and— U.K.

(a) forms an integral part of a national market organisation;

(b) is necessary for the attainment of the objectives set out in [F2 Article 39 of the Treaty on the Functioning of the European Union] of the Treaty; or

(c) is an agreement of farmers or farmers’ associations (or associations of such associations) belonging to a single member State which concerns—

(i) the production or sale of agricultural products, or

(ii) the use of joint facilities for the storage, treatment or processing of agricultural products,

and under which there is no obligation to charge identical prices.]

[F1 The Chapter 1 prohibition does not apply to an agreement to the extent that it is an agreement between the members of—

(a) a recognised producer organisation (“PO”), or

(b) a recognised association of producer organisations (“APO”),

for the PO or APO (as the case may be) to carry out one or more of the activities mentioned in sub-paragraph (1A) on behalf of its members (for all or part of their total production), provided that Conditions A and B are also met.]

[F1 (1A) The activities are—

(a) planning production;

(b) optimising production costs;

(c) concentrating supply;

(d) placing products on the market;

(e) negotiating supply contracts.]

[F1 (1B) Condition A is that—

(a) in the case of a PO, the PO concentrates supply and places the products of its members on the market, whether or not there is a transfer of ownership of agricultural products by the producers to the PO, or

(b) in the case of an APO, the APO concentrates supply and places the products of the members of the POs it represents on the market, whether or not there is a transfer of ownership of agricultural products by the producers to the APO or to any of the POs the APO represents.]

[F1 (1C) Condition B is that—

(a) in the case of a PO, none of the producers concerned are members of any other PO as regards the products covered by the activities mentioned in sub-paragraph (1A) to which the agreement relates, or

(b) in the case of an APO, none of the producers concerned are members of a PO that is a member of any other APO as regards the products covered by the activities mentioned in sub-paragraph (1A) to which the agreement relates.]

[F1 (1D) But the Secretary of State may decide that the RPO exclusion applies if Condition B is not met, if—

(a) every producer which is a member of more than one PO holds distinct production units located in different geographical areas, and

(b) the Secretary of State considers that it is appropriate in all the circumstances for the RPO exclusion to apply.]

[F1 (1E) If the Secretary of State is considering whether to make a decision under sub-paragraph (1D), the Secretary of State may by notice in writing require any party to the agreement in question to give the Secretary of State such information in connection with the agreement as the Secretary of State may require.]

(2) [F3 If the Commission determines that an agreement does not fulfil the conditions specified by the provision for agricultural products for exclusion from [F4 Article 101(1)], the exclusion provided by this paragraph (“the agriculture exclusion”) is to be treated as ceasing to apply to the agreement on the date of the decision.]

(3) The [F5 agriculture exclusion] [F5 RPO exclusion] does not apply to a particular agreement if the [F6 CMA] gives a direction under this paragraph to that effect.

(4) If the [F6 CMA] is considering whether to give a direction under this paragraph, [F7 it] may by notice in writing require any party to the agreement in question to give the [F6 CMA] such information in connection with the agreement as [F7 it] may require.

(5) The [F6 CMA] may give a direction under this paragraph only as provided in sub-paragraph (6) or (7).

(6) If at the end of such period as may be specified in rules under section 51 a person has failed, without reasonable excuse, to comply with a requirement imposed under sub-paragraph (4), the [F6 CMA] may give a direction under this paragraph.

(7) The [F6 CMA] may also give a direction under this paragraph if [F8 it] considers that an agreement (whether or not [F8 it] considers that it infringes the Chapter I prohibition) is likely, or is intended, substantially and unjustifiably to prevent, restrict or distort competition in relation to an agricultural product.

(8) A direction under this paragraph—

(a) must be in writing;

(b) may be made so as to have effect from a date specified in the direction (which may not be earlier than the date on which it is given).

(9) [F9 In this paragraph—

• “agricultural product” means any product of a kind listed in [F10 Annex I] to the Treaty; and

• “provision for agricultural products” means Council Regulation (EEC) No. 26/62 of 4th April 1962 applying certain rules of competition to production of and trade in agricultural products.]

[F9 In this paragraph—

• “agricultural product” means a product that falls within a sector mentioned in Schedule 1 to the Agriculture Act 2020;

• “recognised association of producer organisations” means an association recognised under section 30 of that Act;

• “recognised producer organisation” means a producer organisation recognised under section 30 of that Act.]

Textual Amendments

F1 Sch. 3 para. 9(1)-(1E) substituted for Sch. 3 para. 9(1) (11.11.2020 for specified purposes) by Agriculture Act 2020 (c. 21), s. 57(1)(b)(c)(2)(b), Sch. 2 para. 2(2)

F2 Words in Sch. 3 para. 9(1)(b) substituted (1.8.2012) by The Treaty of Lisbon (Changes in Terminology or Numbering) Order 2012 (S.I. 2012/1809), art. 2(1), Sch. Pt. 1 (with art. 2(2))

F3 Sch. 3 para. 9(2) omitted (11.11.2020 for specified purposes) by virtue of Agriculture Act 2020 (c. 21), s. 57(1)(b)(c)(2)(b), Sch. 2 para. 2(3)

F4 Words in Sch. 3 para. 9(2) substituted (1.8.2012) by The Treaty of Lisbon (Changes in Terminology or Numbering) Order 2012 (S.I. 2012/1809), art. 2(1), Sch. Pt. 1 (with art. 2(2))

F5 Words in Sch. 3 para. 9(3) substituted (11.11.2020 for specified purposes) by Agriculture Act 2020 (c. 21), s. 57(1)(b)(c)(2)(b), Sch. 2 para. 2(4)

F6 Word in Sch. 3 para. 9(3)-(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 55(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F7 Words in Sch. 3 para. 9(4) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(51)(b)(ii); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F8 Words in Sch. 3 para. 9(7) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(51)(b)(iii); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F9 Sch. 3 para. 9(9) substituted (11.11.2020 for specified purposes) by Agriculture Act 2020 (c. 21), s. 57(1)(b)(c)(2)(b), Sch. 2 para. 2(5)

F10 Words in Sch. 3 para. 9(9) substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 1 para. 50(b)(iii)

Modifications etc. (not altering text)

C1 Sch. 3 para. 9 applied (31.12.2020) by Regulation (EC) No. 1379/2013, Art. 41(4) (as inserted by The Common Fisheries Policy (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/739), regs. 1, 19(31)(d); 2020 c. 1, Sch. 5 para. 1(1))