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Competition Act 1998

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E+W+S+N.I.

Competition Act 1998

1998 CHAPTER 41

An Act to make provision about competition and the abuse of a dominant position in the market; to confer powers in relation to investigations conducted in connection with Article 85 or 86 of the treaty establishing the European Community; to amend the Fair Trading Act 1973 in relation to information which may be required in connection with investigations under that Act; to make provision with respect to the meaning of “supply of services” in the Fair Trading Act 1973; and for connected purposes.

[9th November 1998]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

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Modifications etc. (not altering text)

C1Act: power to modify conferred (20.6.2003) by Enterprise Act 2002 (c. 40), ss. 209(1), 279; S.I. 2003/1397, art. 2(1), Sch.

Part IE+W+S+N.I. Competition

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Modifications etc. (not altering text)

C2Pt. I: certain functions made exercisable concurrently (26.11.1998 for certain purposes andprosp. otherwise) by 1984 c. 12, s. 50(3) (as substituted by 1998 c. 41, s. 66(5), Sch. 10 Pt. II para. 2(6) (with s. 73); S.I. 1998/2750, art. 2)

C3Pt. I (except ss. 38(1)-(6), 51) amended (1.2.2001) by 2000 c. 38, ss. 86(1)(3), 89 (with ss. 105(2)(d)(5), 106); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I

C4Pt. I (except ss. 38(1)-(6), 51, 52(6) and (8) and 54) amended (1.2.2001) by 2000 c. 38, s. 86(4)(b)(5) (with ss. 105(2)(d)(5), 106); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I

Pt. I (except ss. 38(1)-(6), 51) amended (1.2.2001) by 2000 c. 38, s. 86(7)(b) (with ss. 105(2)(d)(5), 106); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I

Chapter IE+W+S+N.I. Agreements

IntroductionE+W+S+N.I.

1 Enactments replaced.E+W+S+N.I.

The following shall cease to have effect—

(a)the Restrictive Practices Court Act 1976 (c. 33),

(b)the Restrictive Trade Practices Act 1976 (c. 34),

(c)the Resale Prices Act 1976 (c. 53), and

(d)the Restrictive Trade Practices Act 1977 (c. 19).

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Commencement Information

I1S. 1 partly in force; s. 1 was not in force at Royal Assent, see. s. 76(2)(3); s. 1(b) to (d) in force at 1.3.2000 by S.I. 2000/344, art. 2, Sch.

The prohibitionE+W+S+N.I.

2 Agreements etc. preventing, restricting or distorting competition.E+W+S+N.I.

(1)Subject to section 3, agreements between undertakings, decisions by associations of undertakings or concerted practices which—

(a)may affect trade within the United Kingdom, and

(b)have as their object or effect the prevention, restriction or distortion of competition within the United Kingdom,

are prohibited unless they are exempt in accordance with the provisions of this Part.

(2)Subsection (1) applies, in particular, to agreements, decisions or practices which—

(a)directly or indirectly fix purchase or selling prices or any other trading conditions;

(b)limit or control production, markets, technical development or investment;

(c)share markets or sources of supply;

(d)apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;

(e)make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.

(3)Subsection (1) applies only if the agreement, decision or practice is, or is intended to be, implemented in the United Kingdom.

(4)Any agreement or decision which is prohibited by subsection (1) is void.

(5)A provision of this Part which is expressed to apply to, or in relation to, an agreement is to be read as applying equally to, or in relation to, a decision by an association of undertakings or a concerted practice (but with any necessary modifications).

(6)Subsection (5) does not apply where the context otherwise requires.

(7)In this section “the United Kingdom” means, in relation to an agreement which operates or is intended to operate only in a part of the United Kingdom, that part.

(8)The prohibition imposed by subsection (1) is referred to in this Act as “the Chapter I prohibition”.

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Modifications etc. (not altering text)

Excluded agreementsE+W+S+N.I.

3 Excluded agreements.E+W+S+N.I.

(1)The Chapter I prohibition does not apply in any of the cases in which it is excluded by or as a result of—

(a)Schedule 1 (mergers and concentrations);

(b)Schedule 2 (competition scrutiny under other enactments);

(c)Schedule 3 (planning obligations and other general exclusions). F1...

F2(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)The Secretary of State may at any time by order amend Schedule 1, with respect to the Chapter I prohibition, by—

(a)providing for one or more additional exclusions; or

(b)amending or removing any provision (whether or not it has been added by an order under this subsection).

(3)The Secretary of State may at any time by order amend Schedule 3, with respect to the Chapter I prohibition, by—

(a)providing for one or more additional exclusions; or

(b)amending or removing any provision—

(i)added by an order under this subsection; or

(ii)included in paragraph 1, 2, 8 or 9 of Schedule 3.

(4)The power under subsection (3) to provide for an additional exclusion may be exercised only if it appears to the Secretary of State that agreements which fall within the additional exclusion—

(a)do not in general have an adverse effect on competition, or

(b)are, in general, best considered under Chapter II or [F3the M1Fair Trading Act 1973] [F3the Enterprise Act 2002].

(5)An order under subsection (2)(a) or (3)(a) may include provision (similar to that made with respect to any other exclusion provided by the relevant Schedule) for the exclusion concerned to cease to apply to a particular agreement.

(6)Schedule 3 also gives the Secretary of State power to exclude agreements from the Chapter I prohibition in certain circumstances.

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Amendments (Textual)

F1Word in s. 3(1) repealed (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 26; S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F2S. 3(1)(d) repealed (1.4.2003) by Enterprise Act 2002 (c. 40), ss. 207, 279, Sch. 26 (with Sch. 24 paras. 20, 22); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F3Words in s. 3(4)(b) substituted (20.6.2003 for specified purposes) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(2); S.I. 2003/1397, art. 2(1), Sch. (with art. 3(1))

Commencement Information

I2S. 3 wholly in force; s. 3 not in force at Royal Assent see s. 76(3); s. 3(1)(b) in force for certain purposes at 11.1.1999 and s. 3(1)(a)(c)(d)(2)-(6) in force at 11.1.1999 by S.I. 1998/3166, art. 2, Sch.; s. 3(1)(b) fully in force at 1.3.2000 by S.I. 2000/344, art. 2, Sch.

Marginal Citations

ExemptionsE+W+S+N.I.

4 Individual exemptions.E+W+S+N.I.

(1)The [F4OFT] may grant an exemption from the Chapter I prohibition with respect to a particular agreement if—

(a)a request for an exemption has been made to [F4it] under section 14 by a party to the agreement; and

(b)the agreement is one to which section 9 applies.

(2)An exemption granted under this section is referred to in this Part as an individual exemption.

(3)The exemption—

(a)may be granted subject to such conditions or obligations as the [F4OFT] considers it appropriate to impose; and

(b)has effect for such period as the [F4OFT] considers appropriate.

(4)That period must be specified in the grant of the exemption.

(5)An individual exemption may be granted so as to have effect from a date earlier than that on which it is granted.

(6)On an application made in such way as may be specified by rules under section 51, the [F4OFT] may extend the period for which an exemption has effect; but, if the rules so provide, [F4it] may do so only in specified circumstances.

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Amendments (Textual)

F4Words in s. 4 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(3); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

5 Cancellation etc. of individual exemptions.E+W+S+N.I.

(1)If the [F5OFT] has reasonable grounds for believing that there has been a material change of circumstance since [F5it] granted an individual exemption, [F5it] may by notice in writing—

(a)cancel the exemption;

(b)vary or remove any condition or obligation; or

(c)impose one or more additional conditions or obligations.

(2)If the [F5OFT] has a reasonable suspicion that the information on which [F5it] based [F5its] decision to grant an individual exemption was incomplete, false or misleading in a material particular, [F5it] may by notice in writing take any of the steps mentioned in subsection (1).

(3)Breach of a condition has the effect of cancelling the exemption.

(4)Failure to comply with an obligation allows the [F5OFT], by notice in writing, to take any of the steps mentioned in subsection (1).

(5)Any step taken by the [F5OFT] under subsection (1), (2) or (4) has effect from such time as may be specified in the notice.

(6)If an exemption is cancelled under subsection (2) or (4), the date specified in the notice cancelling it may be earlier than the date on which the notice is given.

(7)The [F5OFT] may act under subsection (1), (2) or (4) on [F5its] own initiative or on a complaint made by any person.

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Amendments (Textual)

F5Words in s. 5 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(4); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

6 Block exemptions.E+W+S+N.I.

(1)If agreements which fall within a particular category of agreement are, in the opinion of the [F6OFT], likely to be agreements to which section 9 applies, the [F6OFT] may recommend that the Secretary of State make an order specifying that category for the purposes of this section.

(2)The Secretary of State may make an order (“a block exemption order”) giving effect to such a recommendation—

(a)in the form in which the recommendation is made; or

(b)subject to such modifications as he considers appropriate.

(3)An agreement which falls within a category specified in a block exemption order is exempt from the Chapter I prohibition.

(4)An exemption under this section is referred to in this Part as a block exemption.

(5)A block exemption order may impose conditions or obligations subject to which a block exemption is to have effect.

(6)A block exemption order may provide—

(a)that breach of a condition imposed by the order has the effect of cancelling the block exemption in respect of an agreement;

(b)that if there is a failure to comply with an obligation imposed by the order, the [F6OFT] may, by notice in writing, cancel the block exemption in respect of the agreement;

(c)that if the [F6OFT] considers that a particular agreement is not one to which section 9 applies, [F7it] may cancel the block exemption in respect of that agreement.

(7)A block exemption order may provide that the order is to cease to have effect at the end of a specified period.

(8)In this section and section 7 “specified” means specified in a block exemption order.

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Amendments (Textual)

F6Word in s. 6 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(5)(a); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F7Word in s. 6(6)(c) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(5)(b); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

7 Block exemptions: opposition.E+W+S+N.I.

(1)A block exemption order may provide that a party to an agreement which—

(a)does not qualify for the block exemption created by the order, but

(b)satisfies specified criteria,

may notify the [F8OFT] of the agreement for the purposes of subsection (2).

(2)An agreement which is notified under any provision included in a block exemption order by virtue of subsection (1) is to be treated, as from the end of the notice period, as falling within a category specified in a block exemption order unless the [F8OFT]

(a)is opposed to its being so treated; and

(b)gives notice in writing to the party concerned of [F8its] opposition before the end of that period.

(3)If the [F8OFT] gives notice of [F8its] opposition under subsection (2), the notification under subsection (1) is to be treated as both notification under section 14 and as a request for an individual exemption made under subsection (3) of that section.

(4)In this section “notice period” means such period as may be specified with a view to giving the [F8OFT] sufficient time to consider whether to oppose under subsection (2).

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Amendments (Textual)

F8Words in s. 7 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(6); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

8 Block exemptions: procedure.E+W+S+N.I.

(1)Before making a recommendation under section 6(1), the [F9OFT] must—

(a)publish details of [F10its] proposed recommendation in such a way as [F10it] thinks most suitable for bringing it to the attention of those likely to be affected; and

(b)consider any representations about it which are made to [F10it].

(2)If the Secretary of State proposes to give effect to such a recommendation subject to modifications, he must inform the [F9OFT] of the proposed modifications and take into account any comments made by the [F9OFT].

(3)If, in the opinion of the [F9OFT], it is appropriate to vary or revoke a block exemption order [F11it] may make a recommendation to that effect to the Secretary of State.

(4)Subsection (1) also applies to any proposed recommendation under subsection (3).

(5)Before exercising [F10its] power to vary or revoke a block exemption order (in a case where there has been no recommendation under subsection (3)), the Secretary of State must—

(a)inform the [F9OFT] of the proposed variation or revocation; and

(b)take into account any comments made by the [F9OFT].

(6)A block exemption order may provide for a block exemption to have effect from a date earlier than that on which the order is made.

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Amendments (Textual)

F9Words in s. 8 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(7)(a); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F10Word in s. 8(1) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(7)(b); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F11Word in s. 8(3) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(7)(c); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

9 The criteria for individual and block exemptions.E+W+S+N.I.

This section applies to any agreement which—

(a)contributes to—

(i)improving production or distribution, or

(ii)promoting technical or economic progress,

while allowing consumers a fair share of the resulting benefit; but

(b)does not—

(i)impose on the undertakings concerned restrictions which are not indispensable to the attainment of those objectives; or

(ii)afford the undertakings concerned the possibility of eliminating competition in respect of a substantial part of the products in question.

10 Parallel exemptions.E+W+S+N.I.

(1)An agreement is exempt from the Chapter I prohibition if it is exempt from the Community prohibition—

(a)by virtue of a Regulation,

(b)because it has been given exemption by the Commission, or

(c)because it has been notified to the Commission under the appropriate opposition or objection procedure and—

(i)the time for opposing, or objecting to, the agreement has expired and the Commission has not opposed it; or

(ii)the Commission has opposed, or objected to, the agreement but has withdrawn its opposition or objection.

(2)An agreement is exempt from the Chapter I prohibition if it does not affect trade between Member States but otherwise falls within a category of agreement which is exempt from the Community prohibition by virtue of a Regulation.

(3)An exemption from the Chapter I prohibition under this section is referred to in this Part as a parallel exemption.

(4)A parallel exemption—

(a)takes effect on the date on which the relevant exemption from the Community prohibition takes effect or, in the case of a parallel exemption under subsection (2), would take effect if the agreement in question affected trade between Member States; and

(b)ceases to have effect—

(i)if the relevant exemption from the Community prohibition ceases to have effect; or

(ii)on being cancelled by virtue of subsection (5) or (7).

(5)In such circumstances and manner as may be specified in rules made under section 51, the [F12OFT] may—

(a)impose conditions or obligations subject to which a parallel exemption is to have effect;

(b)vary or remove any such condition or obligation;

(c)impose one or more additional conditions or obligations;

(d)cancel the exemption.

(6)In such circumstances as may be specified in rules made under section 51, the date from which cancellation of an exemption is to take effect may be earlier than the date on which notice of cancellation is given.

(7)Breach of a condition imposed by the [F12OFT] has the effect of cancelling the exemption.

(8)In exercising [F13its] powers under this section, the [F12OFT] may require any person who is a party to the agreement in question to give [F13it] such information as [F13it] may require.

(9)For the purpose of this section references to an agreement being exempt from the Community prohibition are to be read as including references to the prohibition being inapplicable to the agreement by virtue of a Regulation or a decision by the Commission.

(10)In this section—

  • the Community prohibition” means the prohibition contained in—

    (a)

    paragraph 1 of Article 85;

    (b)

    any corresponding provision replacing, or otherwise derived from, that provision;

    (c)

    such other Regulation as the Secretary of State may by order specify; and

  • Regulation” means a Regulation adopted by the Commission or by the Council.

(11)This section has effect in relation to the prohibition contained in paragraph 1 of Article 53 of the EEA Agreement (and the EFTA Surveillance Authority) as it has effect in relation to the Community prohibition (and the Commission) subject to any modifications which the Secretary of State may by order prescribe.

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Amendments (Textual)

F12Word in s. 10 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(8)(a); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F13Words in s. 10(8) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(8)(b); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

11 Exemption for certain other agreements.E+W+S+N.I.

(1)The fact that a ruling may be given by virtue of Article 88 of the Treaty on the question whether or not agreements of a particular kind are prohibited by Article 85 does not prevent such agreements from being subject to the Chapter I prohibition.

(2)But the Secretary of State may by regulations make such provision as he considers appropriate for the purpose of granting an exemption from the Chapter I prohibition, in prescribed circumstances, in respect of such agreements.

(3)An exemption from the Chapter I prohibition by virtue of regulations under this section is referred to in this Part as a section 11 exemption.

NotificationE+W+S+N.I.

12 Requests for [F14OFT] to examine agreements.E+W+S+N.I.

(1)Sections 13 and 14 provide for an agreement to be examined by the [F14OFT] on the application of a party to the agreement who thinks that it may infringe the Chapter I prohibition.

(2)Schedule 5 provides for the procedure to be followed—

(a)by any person making such an application; and

(b)by the [F14OFT], in considering such an application.

(3)The Secretary of State may by regulations make provision as to the application of sections 13 to 16 and Schedule 5, with such modifications (if any) as may be prescribed, in cases where the [F14OFT]

(a)has given a direction withdrawing an exclusion; or

(b)is considering whether to give such a direction.

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Amendments (Textual)

F14Words in s. 12 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(9); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

Commencement Information

I3S. 12 wholly in force; s. 12 not in force at Royal Assent see s. 76(3); s. 12(3) in force at 11.1.1999 by S.I. 1998/3166, art. 2, Sch.; s. 12(1)(2) in force at 1.3.2000 by S.I. 2000/344, art. 2, Sch.

13 Notification for guidance.E+W+S+N.I.

(1)A party to an agreement who applies for the agreement to be examined under this section must—

(a)notify the [F15OFT] of the agreement; and

(b)apply to [F15the OFT] for guidance.

(2)On an application under this section, the [F15OFT] may give the applicant guidance as to whether or not, in [F15its] view, the agreement is likely to infringe the Chapter I prohibition.

(3)If the [F15OFT] considers that the agreement is likely to infringe the prohibition if it is not exempt, [F15its] guidance may indicate—

(a)whether the agreement is likely to be exempt from the prohibition under—

(i)a block exemption;

(ii)a parallel exemption; or

(iii)a section 11 exemption; or

(b)whether [F15it] would be likely to grant the agreement an individual exemption if asked to do so.

(4)If an agreement to which the prohibition applies has been notified to the [F15OFT] under this section, no penalty is to be imposed under this Part in respect of any infringement of the prohibition by the agreement which occurs during the period—

(a)beginning with the date on which notification was given; and

(b)ending with such date as may be specified in a notice in writing given to the applicant by the [F15OFT] when the application has been determined.

(5)The date specified in a notice under subsection (4)(b) may not be earlier than the date on which the notice is given.

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Amendments (Textual)

F15Words in s. 13 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(10); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

Modifications etc. (not altering text)

C6S. 13 applied (with modifications) (1.3.2000) by S.I. 2000/263, art. 4

14 Notification for a decision.E+W+S+N.I.

(1)A party to an agreement who applies for the agreement to be examined under this section must—

(a)notify the [F16OFT] of the agreement; and

(b)apply to [F16the OFT] for a decision.

(2)On an application under this section, the [F16OFT] may make a decision as to—

(a)whether the Chapter I prohibition has been infringed; and

(b)if it has not been infringed, whether that is because of the effect of an exclusion or because the agreement is exempt from the prohibition.

(3)If an agreement is notified to the [F16OFT] under this section, the application may include a request for the agreement to which it relates to be granted an individual exemption.

(4)If an agreement to which the prohibition applies has been notified to the [F16OFT] under this section, no penalty is to be imposed under this Part in respect of any infringement of the prohibition by the agreement which occurs during the period—

(a)beginning with the date on which notification was given; and

(b)ending with such date as may be specified in a notice in writing given to the applicant by the [F16OFT] when the application has been determined.

(5)The date specified in a notice under subsection (4)(b) may not be earlier than the date on which the notice is given.

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Amendments (Textual)

F16Words in s. 14 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(11); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

Modifications etc. (not altering text)

C7S. 14 applied (with modifications) (1.3.2000) by S.I. 2000/263, art. 5

15 Effect of guidance.E+W+S+N.I.

(1)This section applies to an agreement if the [F17OFT] has determined an application under section 13 by giving guidance that—

(a)the agreement is unlikely to infringe the Chapter I prohibition, regardless of whether or not it is exempt;

(b)the agreement is likely to be exempt under—

(i)a block exemption;

(ii)a parallel exemption; or

(iii)a section 11 exemption; or

(c)[F17it] would be likely to grant the agreement an individual exemption if asked to do so.

(2)The [F17OFT] is to take no further action under this Part with respect to an agreement to which this section applies, unless—

(a)[F17it] has reasonable grounds for believing that there has been a material change of circumstance since [F17it] gave [F17its] guidance;

(b)[F17it] has a reasonable suspicion that the information on which [F17it] based [F17its] guidance was incomplete, false or misleading in a material particular;

(c)one of the parties to the agreement applies to [F17it] for a decision under section 14 with respect to the agreement; or

(d)a complaint about the agreement has been made to [F17it] by a person who is not a party to the agreement.

(3)No penalty may be imposed under this Part in respect of any infringement of the Chapter I prohibition by an agreement to which this section applies.

(4)But the [F17OFT] may remove the immunity given by subsection (3) if—

(a)[F17it] takes action under this Part with respect to the agreement in one of the circumstances mentioned in subsection (2);

(b)[F17it] considers it likely that the agreement will infringe the prohibition; and

(c)[F17it] gives notice in writing to the party on whose application the guidance was given that [F17it] is removing the immunity as from the date specified in [F17its] notice.

(5)If the [F17OFT] has a reasonable suspicion that information—

(a)on which [F17it] based [F17its] guidance, and

(b)which was provided to [F17it] by a party to the agreement,

was incomplete, false or misleading in a material particular, the date specified in a notice under subsection (4)(c) may be earlier than the date on which the notice is given.

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Amendments (Textual)

F17Words in s. 15 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(12); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

Modifications etc. (not altering text)

C8S. 15 applied (with modifications) (1.3.2000) by S.I. 2000/263, art. 6

16 Effect of a decision that the Chapter I prohibition has not been infringed.E+W+S+N.I.

(1)This section applies to an agreement if the [F18OFT] has determined an application under section 14 by making a decision that the agreement has not infringed the Chapter I prohibition.

(2)The [F18OFT] is to take no further action under this Part with respect to the agreement unless—

(a)[F18it] has reasonable grounds for believing that there has been a material change of circumstance since [F18it] gave [F18its] decision; or

(b)[F18it] has a reasonable suspicion that the information on which [F18it] based [F18its] decision was incomplete, false or misleading in a material particular.

(3)No penalty may be imposed under this Part in respect of any infringement of the Chapter I prohibition by an agreement to which this section applies.

(4)But the [F18OFT] may remove the immunity given by subsection (3) if—

(a)[F18it] takes action under this Part with respect to the agreement in one of the circumstances mentioned in subsection (2);

(b)[F18it] considers that it is likely that the agreement will infringe the prohibition; and

(c)[F18it] gives notice in writing to the party on whose application the decision was made that [F18it] is removing the immunity as from the date specified in [F18its] notice.

(5)If the [F18OFT] has a reasonable suspicion that information—

(a)on which [F18it] based [F18its] decision, and

(b)which was provided to [F18it] by a party to the agreement,

was incomplete, false or misleading in a material particular, the date specified in a notice under subsection (4)(c) may be earlier than the date on which the notice is given.

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Amendments (Textual)

F18Words in s. 16 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(13); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

Modifications etc. (not altering text)

C9S. 16 applied (with modifications) (1.3.2000) by S.I. 2000/263, art. 7

Chapter IIE+W+S+N.I. Abuse of Dominant Position

IntroductionE+W+S+N.I.

17 Enactments replaced.E+W+S+N.I.

Sections 2 to 10 of the M2Competition Act 1980 (control of anti-competitive practices) shall cease to have effect.

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Marginal Citations

The prohibitionE+W+S+N.I.

18 Abuse of dominant position.E+W+S+N.I.

(1)Subject to section 19, any conduct on the part of one or more undertakings which amounts to the abuse of a dominant position in a market is prohibited if it may affect trade within the United Kingdom.

(2)Conduct may, in particular, constitute such an abuse if it consists in—

(a)directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;

(b)limiting production, markets or technical development to the prejudice of consumers;

(c)applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;

(d)making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of the contracts.

(3)In this section—

  • dominant position” means a dominant position within the United Kingdom; and

  • the United Kingdom” means the United Kingdom or any part of it.

(4)The prohibition imposed by subsection (1) is referred to in this Act as “the Chapter II prohibition”.

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Modifications etc. (not altering text)

Excluded casesE+W+S+N.I.

19 Excluded cases.E+W+S+N.I.

(1)The Chapter II prohibition does not apply in any of the cases in which it is excluded by or as a result of—

(a)Schedule 1 (mergers and concentrations); or

(b)Schedule 3 (general exclusions).

(2)The Secretary of State may at any time by order amend Schedule 1, with respect to the Chapter II prohibition, by—

(a)providing for one or more additional exclusions; or

(b)amending or removing any provision (whether or not it has been added by an order under this subsection).

(3)The Secretary of State may at any time by order amend paragraph 8 of Schedule 3 with respect to the Chapter II prohibition.

(4)Schedule 3 also gives the Secretary of State power to provide that the Chapter II prohibition is not to apply in certain circumstances.

NotificationE+W+S+N.I.

20 Requests for [F19OFT] to consider conduct.E+W+S+N.I.

(1)Sections 21 and 22 provide for conduct of a person which that person thinks may infringe the Chapter II prohibition to be considered by the [F19OFT] on the application of that person.

(2)Schedule 6 provides for the procedure to be followed—

(a)by any person making an application, and

(b)by the [F19OFT], in considering an application.

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Amendments (Textual)

F19Words in s. 20 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(14); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

21 Notification for guidance.E+W+S+N.I.

(1)A person who applies for conduct to be considered under this section must—

(a)notify the [F20OFT] of it; and

(b)apply to [F20the OFT] for guidance.

(2)On an application under this section, the [F20OFT] may give the applicant guidance as to whether or not, in [F20its] view, the conduct is likely to infringe the Chapter II prohibition.

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Amendments (Textual)

F20Words in s. 21 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(15); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

22 Notification for a decision.E+W+S+N.I.

(1)A person who applies for conduct to be considered under this section must—

(a)notify the [F21OFT] of it; and

(b)apply to [F21the OFT] for a decision.

(2)On an application under this section, the [F21OFT] may make a decision as to—

(a)whether the Chapter II prohibition has been infringed; and

(b)if it has not been infringed, whether that is because of the effect of an exclusion.

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Amendments (Textual)

F21Words in s. 22 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(16); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

23 Effect of guidance.E+W+S+N.I.

(1)This section applies to conduct if the [F22OFT] has determined an application under section 21 by giving guidance that the conduct is unlikely to infringe the Chapter II prohibition.

(2)The [F22OFT] is to take no further action under this Part with respect to the conduct to which this section applies, unless—

(a)[F22it] has reasonable grounds for believing that there has been a material change of circumstance since [F22it] gave [F22its] guidance;

(b)[F22it ] has a reasonable suspicion that the information on which [F22it] based [F22its] guidance was incomplete, false or misleading in a material particular; or

(c)a complaint about the conduct has been made to [F22it].

(3)No penalty may be imposed under this Part in respect of any infringement of the Chapter II prohibition by conduct to which this section applies.

(4)But the [F22OFT] may remove the immunity given by subsection (3) if—

(a)[F22it ] takes action under this Part with respect to the conduct in one of the circumstances mentioned in subsection (2);

(b)[F22it ] considers that it is likely that the conduct will infringe the prohibition; and

(c)[F22it ] gives notice in writing to the undertaking on whose application the guidance was given that [F22it] is removing the immunity as from the date specified in [F22its] notice.

(5)If the [F22OFT] has a reasonable suspicion that information—

(a)on which [F22it] based [F22its] guidance, and

(b)which was provided to [F22it] by an undertaking engaging in the conduct,

was incomplete, false or misleading in a material particular, the date specified in a notice under subsection (4)(c) may be earlier than the date on which the notice is given.

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Amendments (Textual)

F22Words in s. 23 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(17); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

24 Effect of a decision that the Chapter II prohibition has not been infringed.E+W+S+N.I.

(1)This section applies to conduct if the [F23OFT] has determined an application under section 22 by making a decision that the conduct has not infringed the Chapter II prohibition.

(2)The [F23OFT] is to take no further action under this Part with respect to the conduct unless—

(a)[F23it] has reasonable grounds for believing that there has been a material change of circumstance since [F23it] gave [F23its] decision; or

(b)[F23it] has a reasonable suspicion that the information on which [F23it] based [F23its] decision was incomplete, false or misleading in a material particular.

(3)No penalty may be imposed under this Part in respect of any infringement of the Chapter II prohibition by conduct to which this section applies.

(4)But the [F23OFT] may remove the immunity given by subsection (3) if—

(a)[F23it] takes action under this Part with respect to the conduct in one of the circumstances mentioned in subsection (2);

(b)[F23it] considers that it is likely that the conduct will infringe the prohibition; and

(c)[F23it] gives notice in writing to the undertaking on whose application the decision was made that [F23it] is removing the immunity as from the date specified in [F23its] notice.

(5)If the [F23OFT] has a reasonable suspicion that information—

(a)on which [F23it] based [F23its] decision, and

(b)which was provided to [F23it] by an undertaking engaging in the conduct,

was incomplete, false or misleading in a material particular, the date specified in a notice under subsection (4)(c) may be earlier than the date on which the notice is given.

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Amendments (Textual)

F23Words in s. 24 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(18); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

Chapter IIIE+W+S+N.I. Investigation and Enforcement

InvestigationsE+W+S+N.I.

25 [F24OFT’s] power to investigate.E+W+S+N.I.

The [F24OFT] may conduct an investigation if there are reasonable grounds for suspecting—

(a)that the Chapter I prohibition has been infringed; or

(b)that the Chapter II prohibition has been infringed.

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Amendments (Textual)

F24Words in s. 25 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(19); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

26 Powers when conducting investigations.E+W+S+N.I.

(1)For the purposes of an investigation under section 25, the [F25OFT] may require any person to produce to [F25it] a specified document, or to provide [F25it] with specified information, which [F25it] considers relates to any matter relevant to the investigation.

(2)The power conferred by subsection (1) is to be exercised by a notice in writing.

(3)A notice under subsection (2) must indicate—

(a)the subject matter and purpose of the investigation; and

(b)the nature of the offences created by sections 42 to 44.

(4)In subsection (1) “specified” means—

(a)specified, or described, in the notice; or

(b)falling within a category which is specified, or described, in the notice.

(5)The [F26OFT] may also specify in the notice—

(a)the time and place at which any document is to be produced or any information is to be provided;

(b)the manner and form in which it is to be produced or provided.

(6)The power under this section to require a person to produce a document includes power—

(a)if the document is produced—

(i)to take copies of it or extracts from it;

(ii)to require him, or any person who is a present or past officer of his, or is or was at any time employed by him, to provide an explanation of the document;

(b)if the document is not produced, to require him to state, to the best of his knowledge and belief, where it is.

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Amendments (Textual)

F25Words in s. 26(1) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(20)(a); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F26Word in s. 26(5) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(20)(b); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

Modifications etc. (not altering text)

C12Ss. 26-30 applied by 1986 c. 46, s. 9C(2) (as inserted (20.6.2003) by Enterprise Act 2002 (c. 40), ss. 204(2), 279; S.I. 2003/1397, art. 2(1), Sch.)

27 Power to enter premises without a warrant.E+W+S+N.I.

(1)Any officer of the [F27OFT] who is authorised in writing by the [F27OFT] to do so (“an investigating officer”) may enter any premises in connection with an investigation under section 25.

(2)No investigating officer is to enter any premises in the exercise of his powers under this section unless he has given to the occupier of the premises a written notice which—

(a)gives at least two working days’ notice of the intended entry;

(b)indicates the subject matter and purpose of the investigation; and

(c)indicates the nature of the offences created by sections 42 to 44.

(3)Subsection (2) does not apply—

(a)if the [F27OFT] has a reasonable suspicion that the premises are, or have been, occupied by—

(i)a party to an agreement which [F28it] is investigating under section 25(a); or

(ii)an undertaking the conduct of which [F28it] is investigating under section 25(b); or

(b)if the investigating officer has taken all such steps as are reasonably practicable to give notice but has not been able to do so.

(4)In a case falling within subsection (3), the power of entry conferred by subsection (1) is to be exercised by the investigating officer on production of—

(a)evidence of his authorisation; and

(b)a document containing the information referred to in subsection (2)(b) and (c).

(5)An investigating officer entering any premises under this section may—

(a)take with him such equipment as appears to him to be necessary;

(b)require any person on the premises—

(i)to produce any document which he considers relates to any matter relevant to the investigation; and

(ii)if the document is produced, to provide an explanation of it;

(c)require any person to state, to the best of his knowledge and belief, where any such document is to be found;

(d)take copies of, or extracts from, any document which is produced;

(e)require any information which is [F29stored in any electronic form] and is accessible from the premises and which the investigating officer considers relates to any matter relevant to the investigation, to be produced in a form—

(i)in which it can be taken away, and

(ii)in which it is visible and legible [F30or from which it can readily be produced in a visible and legible form].

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F27Word in s. 27 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(21)(a); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F28Word in s. 27(3) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(21)(b); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

Modifications etc. (not altering text)

C12Ss. 26-30 applied by 1986 c. 46, s. 9C(2) (as inserted (20.6.2003) by Enterprise Act 2002 (c. 40), ss. 204(2), 279; S.I. 2003/1397, art. 2(1), Sch.)

28 Power to enter premises under a warrant.E+W+S+N.I.

(1)On an application made by the [F31OFT] to the court in accordance with rules of court, a judge may issue a warrant if he is satisfied that—

(a)there are reasonable grounds for suspecting that there are on any premises documents—

(i)the production of which has been required under section 26 or 27; and

(ii)which have not been produced as required;

(b)there are reasonable grounds for suspecting that—

(i)there are on any premises documents which the [F31OFT] has power under section 26 to require to be produced; and

(ii)if the documents were required to be produced, they would not be produced but would be concealed, removed, tampered with or destroyed; or

(c)an investigating officer has attempted to enter premises in the exercise of his powers under section 27 but has been unable to do so and that there are reasonable grounds for suspecting that there are on the premises documents the production of which could have been required under that section.

(2)A warrant under this section shall authorise a named officer of the [F32OFT], and any other of [F33the OFT’s officers whom the OFT] has authorised in writing to accompany the named officer—

(a)to enter the premises specified in the warrant, using such force as is reasonably necessary for the purpose;

(b)to search the premises and take copies of, or extracts from, any document appearing to be of a kind in respect of which the application under subsection (1) was granted (“the relevant kind”);

(c)to take possession of any documents appearing to be of the relevant kind if—

(i)such action appears to be necessary for preserving the documents or preventing interference with them; or

(ii)it is not reasonably practicable to take copies of the documents on the premises;

(d)to take any other steps which appear to be necessary for the purpose mentioned in paragraph (c)(i);

(e)to require any person to provide an explanation of any document appearing to be of the relevant kind or to state, to the best of his knowledge and belief, where it may be found;

(f)to require any information which is [F34stored in any electronic form] and is accessible from the premises and which the named officer considers relates to any matter relevant to the investigation, to be produced in a form—

(i)in which it can be taken away, and

(ii)in which it is visible and legible [F35or from which it can readily be produced in a visible and legible form].

(3)If, in the case of a warrant under subsection (1)(b), the judge is satisfied that it is reasonable to suspect that there are also on the premises other documents relating to the investigation concerned, the warrant shall also authorise action mentioned in subsection (2) to be taken in relation to any such document.

[F36(3A)A warrant under this section may authorise persons specified in the warrant to accompany the named officer who is executing it.]

(4)Any person entering premises by virtue of a warrant under this section may take with him such equipment as appears to him to be necessary.

(5)On leaving any premises which he has entered by virtue of a warrant under this section, the named officer must, if the premises are unoccupied or the occupier is temporarily absent, leave them as effectively secured as he found them.

(6)A warrant under this section continues in force until the end of the period of one month beginning with the day on which it is issued.

(7)Any document of which possession is taken under subsection (2)(c) may be retained for a period of three months.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F31Word in s. 28(1) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(22)(a); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F32Word in s. 28(2) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(22)(b)(i); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F33Words in s. 28(2) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(22)(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.)

Modifications etc. (not altering text)

C12Ss. 26-30 applied by 1986 c. 46, s. 9C(2) (as inserted (20.6.2003) by Enterprise Act 2002 (c. 40), ss. 204(2), 279; S.I. 2003/1397, art. 2(1), Sch.)

C15S. 28(2): powers of seizure extended (prosp.) by 2001 c. 16, ss. 50, 52-54, 68, 138(2), Sch. 1 Pt. 1 para. 67

C16S. 28(2)(f) modified (prosp.) by 2001 c. 16, ss. 63(2)(h), 138(2)

C18S. 28(7) applied (prosp.) by 2001 c. 16, ss. 57(1)(n)(2)(4), 138(2)

29 Entry of premises under warrant: supplementary.E+W+S+N.I.

(1)A warrant issued under section 28 must indicate—

(a)the subject matter and purpose of the investigation;

(b)the nature of the offences created by sections 42 to 44.

(2)The powers conferred by section 28 are to be exercised on production of a warrant issued under that section.

(3)If there is no one at the premises when the named officer proposes to execute such a warrant he must, before executing it—

(a)take such steps as are reasonable in all the circumstances to inform the occupier of the intended entry; and

(b)if the occupier is informed, afford him or his legal or other representative a reasonable opportunity to be present when the warrant is executed.

(4)If the named officer is unable to inform the occupier of the intended entry he must, when executing the warrant, leave a copy of it in a prominent place on the premises.

(5)In this section—

  • named officer” means the officer named in the warrant; and

  • occupier”, in relation to any premises, means a person whom the named officer reasonably believes is the occupier of those premises.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

C12Ss. 26-30 applied by 1986 c. 46, s. 9C(2) (as inserted (20.6.2003) by Enterprise Act 2002 (c. 40), ss. 204(2), 279; S.I. 2003/1397, art. 2(1), Sch.)

30 Privileged communications.E+W+S+N.I.

(1)A person shall not be required, under any provision of this Part, to produce or disclose a privileged communication.

(2)Privileged communication” means a communication—

(a)between a professional legal adviser and his client, or

(b)made in connection with, or in contemplation of, legal proceedings and for the purposes of those proceedings,

which in proceedings in the High Court would be protected from disclosure on grounds of legal professional privilege.

(3)In the application of this section to Scotland—

(a)references to the High Court are to be read as references to the Court of Session; and

(b)the reference to legal professional privilege is to be read as a reference to confidentiality of communications.

Annotations: Help about Annotation
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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

C12Ss. 26-30 applied by 1986 c. 46, s. 9C(2) (as inserted (20.6.2003) by Enterprise Act 2002 (c. 40), ss. 204(2), 279; S.I. 2003/1397, art. 2(1), Sch.)

[F3730A Use of statements in prosecutionE+W+S+N.I.

A statement made by a person in response to a requirement imposed by virtue of any of sections 26 to 28 may not be used in evidence against him on a prosecution for an offence under section 188 of the Enterprise Act 2002 unless, in the proceedings—

(a)in giving evidence, he makes a statement inconsistent with it, and

(b)evidence relating to it is adduced, or a question relating to it is asked, by him or on his behalf.]

Annotations: Help about Annotation
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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

31 Decisions following an investigation.E+W+S+N.I.

(1)Subsection (2) applies if, as the result of an investigation conducted under section 25, the [F38OFT] proposes to make—

(a)a decision that the Chapter I prohibition has been infringed, or

(b)a decision that the Chapter II prohibition has been infringed.

(2)Before making the decision, the [F38OFT] must—

(a)give written notice to the person (or persons) likely to be affected by the proposed decision; and

(b)give that person (or those persons) an opportunity to make representations.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F38Word in s. 31 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(23); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

EnforcementE+W+S+N.I.

32 Directions in relation to agreements.E+W+S+N.I.

(1)If the [F39OFT] has made a decision that an agreement infringes the Chapter I prohibition, [F39it] may give to such person or persons as [F39it] considers appropriate such directions as [F39it] considers appropriate to bring the infringement to an end.

(2)Subsection (1) applies whether the [F40OFT’s] decision is made on [F40its] own initiative or on an application made to [F40it] under this Part.

(3)A direction under this section may, in particular, include provision—

(a)requiring the parties to the agreement to modify the agreement; or

(b)requiring them to terminate the agreement.

(4)A direction under this section must be given in writing.

Annotations: Help about Annotation
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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F39Words in s. 32(1) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(24)(a); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F40Words in s. 32(2) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(24)(b); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

33 Directions in relation to conduct.E+W+S+N.I.

(1)If the [F41OFT] has made a decision that conduct infringes the Chapter II prohibition, [F41it] may give to such person or persons as [F41it] considers appropriate such directions as [F41it] considers appropriate to bring the infringement to an end.

(2)Subsection (1) applies whether the [F42OFT’s] decision is made on [F42its] own initiative or on an application made to [F42it] under this Part.

(3)A direction under this section may, in particular, include provision—

(a)requiring the person concerned to modify the conduct in question; or

(b)requiring him to cease that conduct.

(4)A direction under this section must be given in writing.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F41Words in s. 33(1) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(25)(a); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F42Words in s. 33(2) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(25)(b); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

34 Enforcement of directions.E+W+S+N.I.

(1)If a person fails, without reasonable excuse, to comply with a direction under section 32 or 33, the [F43OFT] may apply to the court for an order—

(a)requiring the defaulter to make good his default within a time specified in the order; or

(b)if the direction related to anything to be done in the management or administration of an undertaking, requiring the undertaking or any of its officers to do it.

(2)An order of the court under subsection (1) may provide for all of the costs of, or incidental to, the application for the order to be borne by—

(a)the person in default; or

(b)any officer of an undertaking who is responsible for the default.

(3)In the application of subsection (2) to Scotland, the reference to “costs” is to be read as a reference to “expenses”.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F43Word in s. 34 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(26); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

35 Interim measures.E+W+S+N.I.

(1)This section applies if the [F44OFT]

(a)has a reasonable suspicion that the Chapter I prohibition has been infringed, or

(b)has a reasonable suspicion that the Chapter II prohibition has been infringed,

but has not completed [F44its] investigation into the matter.

(2)If the [F44OFT] considers that it is necessary for [F44it] to act under this section as a matter of urgency for the purpose—

(a)of preventing serious, irreparable damage to a particular person or category of person, or

(b)of protecting the public interest,

[F44it] may give such directions as [F44it] considers appropriate for that purpose.

(3)Before giving a direction under this section, the [F44OFT] must—

(a)give written notice to the person (or persons) to whom [F44it] proposes to give the direction; and

(b)give that person (or each of them) an opportunity to make representations.

(4)A notice under subsection (3) must indicate the nature of the direction which the [F44OFT] is proposing to give and [F44its] reasons for wishing to give it.

(5)A direction given under this section has effect while subsection (1) applies, but may be replaced if the circumstances permit by a direction under section 32 or (as appropriate) section 33.

(6)In the case of a suspected infringement of the Chapter I prohibition, sections 32(3) and 34 also apply to directions given under this section.

(7)In the case of a suspected infringement of the Chapter II prohibition, sections 33(3) and 34 also apply to directions given under this section.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F44Words in s. 35 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(27); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

36 Penalty for infringing Chapter I or Chapter II prohibition.E+W+S+N.I.

(1)On making a decision that an agreement has infringed the Chapter I prohibition, the [F45OFT] may require an undertaking which is a party to the agreement to pay [F46the OFT] a penalty in respect of the infringement.

(2)On making a decision that conduct has infringed the Chapter II prohibition, the [F45OFT] may require the undertaking concerned to pay [F46the OFT] a penalty in respect of the infringement.

(3)The [F45OFT] may impose a penalty on an undertaking under subsection (1) or (2) only if [F47the OFT] is satisfied that the infringement has been committed intentionally or negligently by the undertaking.

(4)Subsection (1) is subject to section 39 and does not apply if the [F45OFT] is satisfied that the undertaking acted on the reasonable assumption that that section gave it immunity in respect of the agreement.

(5)Subsection (2) is subject to section 40 and does not apply if the [F45OFT] is satisfied that the undertaking acted on the reasonable assumption that that section gave it immunity in respect of the conduct.

(6)Notice of a penalty under this section must—

(a)be in writing; and

(b)specify the date before which the penalty is required to be paid.

(7)The date specified must not be earlier than the end of the period within which an appeal against the notice may be brought under section 46.

(8)No penalty fixed by the [F45OFT] under this section may exceed 10% of the turnover of the undertaking (determined in accordance with such provisions as may be specified in an order made by the Secretary of State).

(9)Any sums received by the [F45OFT] under this section are to be paid into the Consolidated Fund.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F45Word in s. 36 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(28)(a); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F46Words in s. 36(1)(2) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(28)(b); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F47Words in s. 36(3) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(28)(c); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

37 Recovery of penalties.E+W+S+N.I.

(1)If the specified date in a penalty notice has passed and—

(a)the period during which an appeal against the imposition, or amount, of the penalty may be made has expired without an appeal having been made, or

(b)such an appeal has been made and determined,

the [F48OFT] may recover from the undertaking, as a civil debt due to [F48the OFT], any amount payable under the penalty notice which remains outstanding.

(2)In this section—

  • penalty notice” means a notice given under section 36; and

  • specified date” means the date specified in the penalty notice.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F48Words in s. 37 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(29); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

38 The appropriate level of a penalty.E+W+S+N.I.

(1)The [F49OFT] must prepare and publish guidance as to the appropriate amount of any penalty under this Part.

(2)The [F49OFT] may at any time alter the guidance.

(3)If the guidance is altered, the [F49OFT] must publish it as altered.

(4)No guidance is to be published under this section without the approval of the Secretary of State.

(5)The [F49OFT] may, after consulting the Secretary of State, choose how [F49it] publishes [F49its] guidance.

(6)If the [F49OFT] is preparing or altering guidance under this section [F49it] must consult such persons as [F49it] considers appropriate.

(7)If the proposed guidance or alteration relates to a matter in respect of which a regulator exercises concurrent jurisdiction, those consulted must include that regulator.

(8)When setting the amount of a penalty under this Part, the [F49OFT] must have regard to the guidance for the time being in force under this section.

(9)If a penalty or a fine has been imposed by the Commission, or by a court or other body in another Member State, in respect of an agreement or conduct, the [F49OFT], an appeal tribunal or the appropriate court must take that penalty or fine into account when setting the amount of a penalty under this Part in relation to that agreement or conduct.

(10)In subsection (9) “the appropriate court” means—

(a)in relation to England and Wales, the Court of Appeal;

(b)in relation to Scotland, the Court of Session;

(c)in relation to Northern Ireland, the Court of Appeal in Northern Ireland;

(d)the House of Lords.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F49Words in s. 38 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(30); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

Commencement Information

I4S. 38 wholly in force; s. 38 not in force at Royal Assent see s. 76(3); s. 38(1)-(7) in force at 11.1.1999 by S.I. 1998/3166, art. 2, Sch.; s. 38(8)-(10) in force at 1.3.2000 by S.I. 2000/344, art. 2, Sch.

39 Limited immunity for small agreements.E+W+S+N.I.

(1)In this section “small agreement” means an agreement—

(a)which falls within a category prescribed for the purposes of this section; but

(b)is not a price fixing agreement.

(2)The criteria by reference to which a category of agreement is prescribed may, in particular, include—

(a)the combined turnover of the parties to the agreement (determined in accordance with prescribed provisions);

(b)the share of the market affected by the agreement (determined in that way).

(3)A party to a small agreement is immune from the effect of section 36(1); but the [F50OFT] may withdraw that immunity under subsection (4).

(4)If the [F50OFT] has investigated a small agreement, [F50it] may make a decision withdrawing the immunity given by subsection (3) if, as a result of [F50its] investigation, [F50it] considers that the agreement is likely to infringe the Chapter I prohibition.

(5)The [F50OFT] must give each of the parties in respect of which immunity is withdrawn written notice of [F50its] decision to withdraw the immunity.

(6)A decision under subsection (4) takes effect on such date (“the withdrawal date”) as may be specified in the decision.

(7)The withdrawal date must be a date after the date on which the decision is made.

(8)In determining the withdrawal date, the [F50OFT] must have regard to the amount of time which the parties are likely to require in order to secure that there is no further infringement of the Chapter I prohibition with respect to the agreement.

(9)In subsection (1) “price fixing agreement” means an agreement which has as its object or effect, or one of its objects or effects, restricting the freedom of a party to the agreement to determine the price to be charged (otherwise than as between that party and another party to the agreement) for the product, service or other matter to which the agreement relates.

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Amendments (Textual)

F50Words in s. 39 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(31); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

40 Limited immunity in relation to the Chapter II prohibition.E+W+S+N.I.

(1)In this section “conduct of minor significance” means conduct which falls within a category prescribed for the purposes of this section.

(2)The criteria by reference to which a category is prescribed may, in particular, include—

(a)the turnover of the person whose conduct it is (determined in accordance with prescribed provisions);

(b)the share of the market affected by the conduct (determined in that way).

(3)A person is immune from the effect of section 36(2) if [F51its] conduct is conduct of minor significance; but the [F52OFT] may withdraw that immunity under subsection (4).

(4)If the [F52OFT] has investigated conduct of minor significance, [F53it] may make a decision withdrawing the immunity given by subsection (3) if, as a result of [F53its] investigation, [F53it] considers that the conduct is likely to infringe the Chapter II prohibition.

(5)The [F52OFT] must give the person, or persons, whose immunity has been withdrawn written notice of [F51its] decision to withdraw the immunity.

(6)A decision under subsection (4) takes effect on such date (“the withdrawal date”) as may be specified in the decision.

(7)The withdrawal date must be a date after the date on which the decision is made.

(8)In determining the withdrawal date, the [F52OFT] must have regard to the amount of time which the person or persons affected are likely to require in order to secure that there is no further infringement of the Chapter II prohibition.

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Amendments (Textual)

F51Word in s. 40(5) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(32)(c); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F52Word in s. 40 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(32)(a); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F53Words in s. 40(4) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(32)(b); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

41 Agreements notified to the Commission.E+W+S+N.I.

(1)This section applies if a party to an agreement which may infringe the Chapter I prohibition has notified the agreement to the Commission for a decision as to whether an exemption will be granted under Article 85 with respect to the agreement.

(2)A penalty may not be required to be paid under this Part in respect of any infringement of the Chapter I prohibition after notification but before the Commission determines the matter.

(3)If the Commission withdraws the benefit of provisional immunity from penalties with respect to the agreement, subsection (2) ceases to apply as from the date on which that benefit is withdrawn.

(4)The fact that an agreement has been notified to the Commission does not prevent the [F54OFT] from investigating it under this Part.

(5)In this section “provisional immunity from penalties” has such meaning as may be prescribed.

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Amendments (Textual)

F54Word in s. 41 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(33); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

OffencesE+W+S+N.I.

42 Offences.E+W+S+N.I.

(1)A person is guilty of an offence if he fails to comply with a requirement imposed on him under section 26, 27 or 28.

(2)If a person is charged with an offence under subsection (1) in respect of a requirement to produce a document, it is a defence for him to prove—

(a)that the document was not in his possession or under his control; and

(b)that it was not reasonably practicable for him to comply with the requirement.

(3)If a person is charged with an offence under subsection (1) in respect of a requirement—

(a)to provide information,

(b)to provide an explanation of a document, or

(c)to state where a document is to be found,

it is a defence for him to prove that he had a reasonable excuse for failing to comply with the requirement.

(4)Failure to comply with a requirement imposed under section 26 or 27 is not an offence if the person imposing the requirement has failed to act in accordance with that section.

(5)A person is guilty of an offence if he intentionally obstructs an officer acting in the exercise of his powers under section 27.

(6)A person guilty of an offence under subsection (1) or (5) is liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum;

(b)on conviction on indictment, to a fine.

(7)A person who intentionally obstructs an officer in the exercise of his powers under a warrant issued under section 28 is guilty of an offence and liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum;

(b)on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.

43 Destroying or falsifying documents.E+W+S+N.I.

(1)A person is guilty of an offence if, having been required to produce a document under section 26, 27 or 28—

(a)he intentionally or recklessly destroys or otherwise disposes of it, falsifies it or conceals it, or

(b)he causes or permits its destruction, disposal, falsification or concealment.

(2)A person guilty of an offence under subsection (1) is liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum;

(b)on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.

44 False or misleading information.E+W+S+N.I.

(1)If information is provided by a person to the [F55OFT] in connection with any function of the [F55OFT] under this Part, that person is guilty of an offence if—

(a)the information is false or misleading in a material particular, and

(b)he knows that it is or is reckless as to whether it is.

(2)A person who—

(a)provides any information to another person, knowing the information to be false or misleading in a material particular, or

(b)recklessly provides any information to another person which is false or misleading in a material particular,

knowing that the information is to be used for the purpose of providing information to the [F55OFT] in connection with any of [F55its] functions under this Part, is guilty of an offence.

(3)A person guilty of an offence under this section is liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum;

(b)on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.

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Amendments (Textual)

F55Words in s. 44 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(34); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

Modifications etc. (not altering text)

C22S. 44 applied (18.6.2001) by 2000 c. 8, s. 399; S.I. 2001/1820, art. 2, Sch.

Chapter IVE+W+S+N.I. The Competition Commission and Appeals

The CommissionE+W+S+N.I.

45 The Competition Commission.E+W+S+N.I.

(1)There is to be a body corporate known as the Competition Commission.

(2)The Commission is to have such functions as are conferred on it by or as a result of this Act.

(3)The Monopolies and Mergers Commission is dissolved and its functions are transferred to the Competition Commission.

(4)In any enactment, instrument or other document, any reference to the Monopolies and Mergers Commission which has continuing effect is to be read as a reference to the Competition Commission.

(5)The Secretary of State may by order make such consequential, supplemental and incidental provision as he considers appropriate in connection with—

(a)the dissolution of the Monopolies and Mergers Commission; and

(b)the transfer of functions effected by subsection (3).

(6)An order made under subsection (5) may, in particular, include provision—

(a)for the transfer of property, rights, obligations and liabilities and the continuation of proceedings, investigations and other matters; or

(b)amending any enactment which makes provision with respect to the Monopolies and Mergers Commission or any of its functions.

(7)[F56Schedules 7 and 7A make] further provision about the Competition Commission.

[F57(8)The Secretary of State may by order make such modifications in Part 2 of Schedule 7 and in Schedule 7A (performance of the Competition Commission’s general functions) as he considers appropriate for improving the performance by the Competition Commission of its functions.]

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Amendments (Textual)

AppealsE+W+S+N.I.

46 Appealable decisions.E+W+S+N.I.

(1)Any party to an agreement in respect of which the [F58OFT] has made a decision may appeal to [F59the Tribunal] against, or with respect to, the decision.

(2)Any person in respect of whose conduct the [F58OFT] has made a decision may appeal to [F59the Tribunal] against, or with respect to, the decision.

(3)In this section “decision” means a decision of the [F58OFT]

(a)as to whether the Chapter I prohibition has been infringed,

(b)as to whether the Chapter II prohibition has been infringed,

(c)as to whether to grant an individual exemption,

(d)in respect of an individual exemption—

(i)as to whether to impose any condition or obligation under section 4(3)(a) or 5(1)(c),

(ii)where such a condition or obligation has been imposed, as to the condition or obligation,

(iii)as to the period fixed under section 4(3)(b), or

(iv)as to the date fixed under section 4(5),

(e)as to—

(i)whether to extend the period for which an individual exemption has effect, or

(ii)the period of any such extension,

(f)cancelling an exemption,

(g)as to the imposition of any penalty under section 36 or as to the amount of any such penalty,

F60(h). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

and includes a direction given under section 32, 33 or 35 and such other decision [F61under this Part] as may be prescribed.

(4)Except in the case of an appeal against the imposition, or the amount, of a penalty, the making of an appeal under this section does not suspend the effect of the decision to which the appeal relates.

(5)Part I of Schedule 8 makes further provision about appeals.

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Amendments (Textual)

F58Word in s. 46 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(36); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F59Words in s. 46(1)(2) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 5 para. 2(a); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F61Words in s. 46(3) inserted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 5 para. 2(b); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

Modifications etc. (not altering text)

C23Ss. 46-47 modified (1.3.2000) by S.I. 2000/261, rule 3

Ss. 46-47 modified (1.3.2000) by S.I. 2000/261, rule 6

[F6247 Third party appealsE+W+S+N.I.

(1)A person who does not fall within section 46(1) or (2) may appeal to the Tribunal with respect to a decision falling within paragraphs (a) to (f) of section 46(3) or such other decision of the OFT under this Part as may be prescribed.

(2)A person may make an appeal under subsection (1) only if the Tribunal considers that he has a sufficient interest in the decision with respect to which the appeal is made, or that he represents persons who have such an interest.

(3)The making of an appeal under this section does not suspend the effect of the decision to which the appeal relates.]

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F62S. 47 substituted (20.6.2003) by Enterprise Act 2002 (c. 40), ss. 17, 279; S.I. 2003/1397, art. 2(1), Sch. (with art. 5)

Modifications etc. (not altering text)

C24Ss. 46-47 modified (1.3.2000) by S.I. 2000/261, rule. 3

Ss. 46-47 modified (1.3.2000) by S.I. 2000/261, rule 6

[F6347A Monetary claims before TribunalE+W+S+N.I.

(1)This section applies to—

(a)any claim for damages, or3

(b)any other claim for a sum of money,

which a person who has suffered loss or damage as a result of the infringement of a relevant prohibition may make in civil proceedings brought in any part of the United Kingdom.

(2)In this section “relevant prohibition” means any of the following—

(a)the Chapter I prohibition;

(b)the Chapter II prohibition;

(c)the prohibition in Article 81(1) of the Treaty;

(d)the prohibition in Article 82 of the Treaty;

(e)the prohibition in Article 65(1) of the Treaty establishing the European Coal and Steel Community;

(f)the prohibition in Article 66(7) of that Treaty.

(3)For the purpose of identifying claims which may be made in civil proceedings, any limitation rules that would apply in such proceedings are to be disregarded.

(4)A claim to which this section applies may (subject to the provisions of this Act and Tribunal rules) be made in proceedings brought before the Tribunal.

(5)But no claim may be made in such proceedings—

(a)until a decision mentioned in subsection (6) has established that the relevant prohibition in question has been infringed; and

(b)otherwise than with the permission of the Tribunal, during any period specified in subsection (7) or (8) which relates to that decision.

(6)The decisions which may be relied on for the purposes of proceedings under this section are —

(a)a decision of the OFT that the Chapter I prohibition or the Chapter II prohibition has been infringed;

(b)a decision of the OFT that the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed;

(c)a decision of the Tribunal (on an appeal from a decision of the OFT) that the Chapter I prohibition, the Chapter II prohibition or the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed;

(d)a decision of the European Commission that the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed; or

(e)a decision of the European Commission that the prohibition in Article 65(1) of the Treaty establishing the European Coal and Steel Community has been infringed, or a finding made by the European Commission under Article 66(7) of that Treaty.

(7)The periods during which proceedings in respect of a claim made in reliance on a decision mentioned in subsection (6)(a), (b) or (c) may not be brought without permission are—

(a)in the case of a decision of the OFT, the period during which an appeal may be made to the Tribunal under section 46, section 47 or the EC Competition Law (Articles 84 and 85) Enforcement Regulations 2001 (S.I. 2001/2916);

(b)in the case of a decision of the OFT which is the subject of an appeal mentioned in paragraph (a), the period following the decision of the Tribunal on the appeal during which a further appeal may be made under section 49 or under those Regulations;

(c)in the case of a decision of the Tribunal mentioned in subsection (6)(c), the period during which a further appeal may be made under section 49 or under those Regulations;

(d)in the case of any decision which is the subject of a further appeal, the period during which an appeal may be made to the House of Lords from a decision on the further appeal;

and, where any appeal mentioned in paragraph (a), (b), (c) or (d) is made, the period specified in that paragraph includes the period before the appeal is determined.

(8)The periods during which proceedings in respect of a claim made in reliance on a decision or finding of the European Commission may not be brought without permission are—

(a)the period during which proceedings against the decision or finding may be instituted in the European Court; and

(b)if any such proceedings are instituted, the period before those proceedings are determined.

(9)In determining a claim to which this section applies the Tribunal is bound by any decision mentioned in subsection (6) which establishes that the prohibition in question has been infringed.

(10)The right to make a claim to which this section applies in proceedings before the Tribunal does not affect the right to bring any other proceedings in respect of the claim.]

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Amendments (Textual)

[F6447B Claims brought on behalf of consumersE+W+S+N.I.

(1)A specified body may (subject to the provisions of this Act and Tribunal rules) bring proceedings before the Tribunal which comprise consumer claims made or continued on behalf of at least two individuals.

(2)In this section “consumer claim” means a claim to which section 47A applies which an individual has in respect of an infringement affecting (directly or indirectly) goods or services to which subsection (7) applies.

(3)A consumer claim may be included in proceedings under this section if it is—

(a)a claim made in the proceedings on behalf of the individual concerned by the specified body; or

(b)a claim made by the individual concerned under section 47A which is continued in the proceedings on his behalf by the specified body;

and such a claim may only be made or continued in the proceedings with the consent of the individual concerned.

(4)The consumer claims included in proceedings under this section must all relate to the same infringement.

(5)The provisions of section 47A(5) to (10) apply to a consumer claim included in proceedings under this section as they apply to a claim made in proceedings under that section.

(6)Any damages or other sum (not being costs or expenses) awarded in respect of a consumer claim included in proceedings under this section must be awarded to the individual concerned; but the Tribunal may, with the consent of the specified body and the individual, order that the sum awarded must be paid to the specified body (acting on behalf of the individual).

(7)This subsection applies to goods or services which—

(a)the individual received, or sought to receive, otherwise than in the course of a business carried on by him (notwithstanding that he received or sought to receive them with a view to carrying on a business); and

(b)were, or would have been, supplied to the individual (in the case of goods whether by way of sale or otherwise) in the course of a business carried on by the person who supplied or would have supplied them.

(8)A business includes—

(a)a professional practice;

(b)any other undertaking carried on for gain or reward;

(c)any undertaking in the course of which goods or services are supplied otherwise than free of charge.

(9)Specified” means specified in an order made by the Secretary of State, in accordance with criteria to be published by the Secretary of State for the purposes of this section.

(10)An application by a body to be specified in an order under this section is to be made in a form approved by the Secretary of State for the purpose.]

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Amendments (Textual)

F6548 Appeal tribunals.E+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F65S. 48 repealed (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 5 para. 3, Sch. 26; S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

[F6649 Further appealsE+W+S+N.I.

(1)An appeal lies to the appropriate court—

(a)from a decision of the Tribunal as to the amount of a penalty under section 36;

(b)from a decision of the Tribunal as to the award of damages or other sum in respect of a claim made in proceedings under section 47A or included in proceedings under section 47B (other than a decision on costs or expenses) or as to the amount of any such damages or other sum; and

(c)on a point of law arising from any other decision of the Tribunal on an appeal under section 46 or 47.

(2)An appeal under this section—

(a)may be brought by a party to the proceedings before the Tribunal or by a person who has a sufficient interest in the matter; and

(b)requires the permission of the Tribunal or the appropriate court.

(3)In this section “the appropriate court” means the Court of Appeal or, in the case of an appeal from Tribunal proceedings in Scotland, the Court of Session.]

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Amendments (Textual)

F66S. 49 substituted (1.4.2003 for specified purposes) by Enterprise Act 2002 (c. 40), s. 279, Sch. 5 para. 4; S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

Commencement Information

I5S. 49 wholly in force; s. 49 not in force at Royal Assent see s. 76(3); s. 49(3) in force at 1.4.1999 by S.I. 1999/505, art. 2 Sch. 2; s. 49(1)(2) and (4) in force at 1.3.2000 by S.I. 2000/344, art. 2, Sch.

Chapter VE+W+S+N.I. Miscellaneous

Vertical agreements and land agreementsE+W+S+N.I.

50 Vertical agreements and land agreements.E+W+S+N.I.

(1)The Secretary of State may by order provide for any provision of this Part to apply in relation to—

(a)vertical agreements, or

(b)land agreements,

with such modifications as may be prescribed.

(2)An order may, in particular, provide for exclusions or exemptions, or otherwise provide for prescribed provisions not to apply, in relation to—

(a)vertical agreements, or land agreements, in general; or

(b)vertical agreements, or land agreements, of any prescribed description.

(3)An order may empower the [F67OFT] to give directions to the effect that in prescribed circumstances an exclusion, exemption or modification is not to apply (or is to apply in a particular way) in relation to an individual agreement.

(4)Subsections (2) and (3) are not to be read as limiting the powers conferred by section 71.

(5)In this section—

  • land agreement” and “vertical agreement” have such meaning as may be prescribed; and

  • prescribed” means prescribed by an order.

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Amendments (Textual)

F67Word in s. 50 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(37); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

[F68OFT’s] rules, guidance and feesE+W+S+N.I.

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Amendments (Textual)

F68Word in s. 51 cross-heading substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(38); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

51 Rules.E+W+S+N.I.

(1)The [F69OFT] may make such rules about procedural and other matters in connection with the carrying into effect of the provisions of this Part as [F69it] considers appropriate.

(2)Schedule 9 makes further provision about rules made under this section but is not to be taken as restricting the [F70OFT] powers under this section.

(3)If the [F71OFT] is preparing rules under this section [F71it] must consult such persons as he considers appropriate.

(4)If the proposed rules relate to a matter in respect of which a regulator exercises concurrent jurisdiction, those consulted must include that regulator.

(5)No rule made by the [F72OFT] is to come into operation until it has been approved by an order made by the Secretary of State.

(6)The Secretary of State may approve any rule made by the [F72OFT]

(a)in the form in which it is submitted; or

(b)subject to such modifications as he considers appropriate.

(7)If the Secretary of State proposes to approve a rule subject to modifications he must inform the [F72OFT] of the proposed modifications and take into account any comments made by the [F72OFT].

(8)Subsections (5) to (7) apply also to any alteration of the rules made by the [F72OFT].

(9)The Secretary of State may, after consulting the [F72OFT], by order vary or revoke any rules made under this section.

(10)If the Secretary of State considers that rules should be made under this section with respect to a particular matter he may direct the [F73OFT] to exercise [F73its] powers under this section and make rules about that matter.

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Amendments (Textual)

F69Words in s. 51(1) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(38)(a); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F70Word in s. 51(2) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(38)(b); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F71Words in s. 51(3) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(38)(c); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F72Word in s. 51(5)-(9) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(38)(d); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F73Words in s. 51(10) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(38)(e); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

52 Advice and information.E+W+S+N.I.

(1)As soon as is reasonably practicable after the passing of this Act, the Director must prepare and publish general advice and information about—

(a)the application of the Chapter I prohibition and the Chapter II prohibition, and

(b)the enforcement of those prohibitions.

(2)The [F74OFT] may at any time publish revised, or new, advice or information.

(3)Advice and information published under this section must be prepared with a view to—

(a)explaining provisions of this Part to persons who are likely to be affected by them; and

(b)indicating how the [F74OFT] expects such provisions to operate.

(4)Advice (or information) published by virtue of subsection (3)(b) may include advice (or information) about the factors which the [F75OFT] may take into account in considering whether, and if so how, to exercise a power conferred on [F75it] by Chapter I, II or III.

(5)Any advice or information published by the [F76OFT] under this section is to be published in such form and in such manner as [F76it] considers appropriate.

(6)If the [F77OFT] is preparing any advice or information under this section [F77it] must consult such persons as he considers appropriate.

(7)If the proposed advice or information relates to a matter in respect of which a regulator exercises concurrent jurisdiction, those consulted must include that regulator.

(8)In preparing any advice or information under this section about a matter in respect of which he may exercise functions under this Part, a regulator must consult—

(a)the [F78OFT];

(b)the other regulators; and

(c)such other persons as he considers appropriate.

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Amendments (Textual)

F74Word in s. 52(2)(3) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(39)(a); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F75Words in s. 52(4) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(39)(b); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F76Words in s. 52(5) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(39)(c); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F77Words in s. 52(6) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(39)(d); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F78Word in s. 52(8) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(39)(e); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

53 Fees.E+W+S+N.I.

(1)The [F79OFT] may charge fees, of specified amounts, in connection with the exercise by [F79it] of specified functions under this Part.

(2)Rules may, in particular, provide—

(a)for the amount of any fee to be calculated by reference to matters which may include—

(i)the turnover of any party to an agreement (determined in such manner as may be specified);

(ii)the turnover of a person whose conduct the [F79OFT] is to consider (determined in that way);

(b)for different amounts to be specified in connection with different functions;

(c)for the repayment by the [F79OFT] of the whole or part of a fee in specified circumstances;

(d)that an application or notice is not to be regarded as duly made or given unless the appropriate fee is paid.

(3)In this section—

(a)rules” means rules made by the [F79OFT] under section 51; and

(b)specified” means specified in rules.

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Amendments (Textual)

F79Words in s. 53 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(40); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

RegulatorsE+W+S+N.I.

54 Regulators.E+W+S+N.I.

(1)In this Part “regulator” means [F80

(a)the Director General of Telecommunications;

(b)the Gas and Electricity Markets Authority;

(c)the Director General of Electricity Supply for Northern Ireland;

(d)the Director General of Water Services;

(e)the Rail Regulator;

(f)the Director General of Gas for Northern Ireland; and

(g)the Civil Aviation Authority.]

(2)Parts II and III of Schedule 10 provide for functions of the [F81OFT] under this Part to be exercisable concurrently by regulators.

(3)Parts IV and V of Schedule 10 make minor and consequential amendments in connection with the regulators’ competition functions.

(4)The Secretary of State may make regulations for the purpose of co-ordinating the performance of functions under this Part (“Part I functions”) which are exercisable concurrently by two or more competent persons as a result of any provision made by Part II or III of Schedule 10 [F82or by Chapter V of Part I of the Transport Act 2000].

(5)The regulations may, in particular, make provision—

(a)as to the procedure to be followed by competent persons when determining who is to exercise Part I functions in a particular case;

(b)as to the steps which must be taken before a competent person exercises, in a particular case, such Part I functions as may be prescribed;

(c)as to the procedure for determining, in a particular case, questions arising as to which competent person is to exercise Part I functions in respect of the case;

(d)for Part I functions in a particular case to be exercised jointly—

(i)by the [F81OFT] and one or more regulators, or

(ii)by two or more regulators,

and as to the procedure to be followed in such cases;

(e)as to the circumstances in which the exercise by a competent person of such Part I functions as may be prescribed is to preclude the exercise of such functions by another such person;

(f)for cases in respect of which Part I functions are being, or have been, exercised by a competent person to be transferred to another such person;

(g)for the person (“A”) exercising Part I functions in a particular case—

(i)to appoint another competent person (“B”) to exercise Part I functions on A’s behalf in relation to the case; or

(ii)to appoint officers of B (with B’s consent) to act as officers of A in relation to the case;

(h)for notification as to who is exercising Part I functions in respect of a particular case.

(6)Provision made by virtue of subsection (5)(c) may provide for questions to be referred to and determined by the Secretary of State or by such other person as may be prescribed.

(7)Competent person” means the [F81OFT] or any of the regulators.

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Amendments (Textual)

F80Words in s. 54(1) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(41)(a); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F81Word in s. 54(1) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(41)(b); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F82Words in s. 54(4) inserted (1.2.2001) by 2000 c. 38, ss. 97, 275(1), Sch. 8 Pt. IV para. 14(3) (with s. 106); S.I. 2001/57, art. 3, Sch. 2 Pt. I

Modifications etc. (not altering text)

C25S. 54(5)-(7) applied by 1986 c. 46, s. 9D(2) (as inserted (20.6.2003) by Enterprise Act 2002 (c. 40), ss. 204(2), 279; S.I. 2003/1397, art. 2(1), Sch.)

Commencement Information

I6S. 54 wholly in force; s. 54 not in force at Royal Assent see s. 76(3); s. 54(2) in force for certain purposes at 26.11.1998 by S.I. 1998/2750, art. 2; s. 54(3) in force for certain purposes at 11.1.1999 and s. 54(4)-(7) in force at the same date by S.I. 1998/3166, art. 2, Sch.; s. 54(3) in force for certain purposes at 1.4.1999 by S.I. 1999/505, art. 2, Sch. 2; s. 54(1)(2) and (3) wholly in force at 1.3.2000 by S.I. 2000/344, art. 2, Sch.

Confidentiality and immunity from defamationE+W+S+N.I.

F8355 General restrictions on disclosure of information.E+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F8356 Director and Secretary of State to have regard to certain matters in relation to the disclosure of information.E+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

57 Defamation.E+W+S+N.I.

For the purposes of the law relating to defamation, absolute privilege attaches to any advice, guidance, notice or direction given, or decision made, by the [F84OFT] in the exercise of any of [F84its] functions under this Part.

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Amendments (Textual)

F84Words in s. 57 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(42); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

Findings of fact by [F85OFT] E+W+S+N.I.

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Amendments (Textual)

F85Word in s. 58 cross-heading substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(43); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

58 Findings of fact by [F86OFT].E+W+S+N.I.

(1)Unless the court directs otherwise or the [F86OFT] has decided to take further action in accordance with section 16(2) or 24(2), [F87OFT’s] finding which is relevant to an issue arising in Part I proceedings is binding on the parties if—

(a)the time for bringing an appeal [F88under section 46 or 47] in respect of the finding has expired and the relevant party has not brought such an appeal; or

(b)the decision of [F89the Tribunal] on such an appeal has confirmed the finding.

(2)In this section—

  • [F87OFT’s] finding” means a finding of fact made by the [F86OFT] in the course of—

    (a)

    determining an application for a decision under section 14 or 22, or

    (b)

    conducting an investigation under section 25;

  • Part I proceedings” means proceedings—

    (a)

    in respect of an alleged infringement of the Chapter I prohibition or of the Chapter II prohibition; but

    (b)

    which are brought otherwise than by the [F86OFT];

  • relevant party” means—

    (a)

    in relation to the Chapter I prohibition, a party to the agreement which is alleged to have infringed the prohibition; and

    (b)

    in relation to the Chapter II prohibition, the undertaking whose conduct is alleged to have infringed the prohibition.

(3)Rules of court may make provision in respect of assistance to be given by the [F86OFT] to the court in Part I proceedings.

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Amendments (Textual)

F86Word in s. 58 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(43)(a); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F87Words in s. 58 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(43)(b); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F88Words in s. 58(1)(a) inserted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 5 para. 5(a); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F89Words in s. 58(1)(b) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 5 para. 5(b); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

[F90Findings of infringementsE+W+S+N.I.

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Amendments (Textual)

F90S. 58A and cross-heading inserted (20.6.2003) by Enterprise Act 2002 (c. 40), s. 20(1)(2), 279 (with s. 20(2)); S.I. 2003/1397, art. 2(1), Sch.

58A Findings of infringementsE+W+S+N.I.

(1)This section applies to proceedings before the court in which damages or any other sum of money is claimed in respect of an infringement of—

(a)the Chapter I prohibition;

(b)the Chapter II prohibition;

(c)the prohibition in Article 81(1) of the Treaty;

(d)the prohibition in Article 82 of the Treaty.

(2)In such proceedings, the court is bound by a decision mentioned in subsection (3) once any period specified in subsection (4) which relates to the decision has elapsed.

(3)The decisions are—

(a)a decision of the OFT that the Chapter I prohibition or the Chapter II prohibition has been infringed;

(b)a decision of the OFT that the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed;

(c)a decision of the Tribunal (on an appeal from a decision of the OFT) that the Chapter I prohibition or the Chapter II prohibition has been infringed, or that the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed.

(4)The periods mentioned in subsection (2) are—

(a)in the case of a decision of the OFT, the period during which an appeal may be made to the Tribunal under section 46 or 47 or the EC Competition Law (Articles 84 and 85) Enforcement Regulations 2001 (S.I. 2001/2916);

(b)in the case of a decision of the Tribunal mentioned in subsection (3)(c), the period during which a further appeal may be made under section 49 or under those Regulations;

(c)in the case of any decision which is the subject of a further appeal, the period during which an appeal may be made to the House of Lords from a decision on the further appeal;

and, where any appeal mentioned in paragraph (a), (b) or (c) is made, the period specified in that paragraph includes the period before the appeal is determined.]

Interpretation and governing principlesE+W+S+N.I.

59 Interpretation.E+W+S+N.I.

(1)In this Part—

  • F91...

  • Article 85” means Article 85 of the Treaty;

  • Article 86” means Article 86 of the Treaty;

  • block exemption” has the meaning given in section 6(4);

  • block exemption order” has the meaning given in section 6(2);

  • the Chapter I prohibition” has the meaning given in section 2(8);

  • the Chapter II prohibition” has the meaning given in section 18(4);

  • the Commission” (except in relation to the Competition Commission) means the European Commission;

  • the Council” means the Council of the European Union;

  • the court”, except in sections 58 [F92, 58A] and 60 and the expression “European Court”, means—

    (a)

    in England and Wales, the High Court;

    (b)

    in Scotland, the Court of Session; and

    (c)

    in Northern Ireland, the High Court;

  • F93...

  • document” includes information recorded in any form;

  • the EEA Agreement” means the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as it has effect for the time being;

  • the European Court” means the Court of Justice of the European Communities and includes the Court of First Instance;

  • individual exemption” has the meaning given in section 4(2);

  • information” includes estimates and forecasts;

  • investigating officer” has the meaning given in section 27(1);

  • Minister of the Crown” has the same meaning as in the Ministers of the M3Crown Act 1975;

  • officer”, in relation to a body corporate, includes a director, manager or secretary and, in relation to a partnership in Scotland, includes a partner;

  • [F94the OFT” means the Office of Fair Trading;]

  • parallel exemption” has the meaning given in section 10(3);

  • person”, in addition to the meaning given by the M4Interpretation Act 1978, includes any undertaking;

  • premises” does not include domestic premises unless—

    (a)

    they are also used in connection with the affairs of an undertaking, or

    (b)

    documents relating to the affairs of an undertaking are kept there,

    but does include any vehicle;

  • prescribed” means prescribed by regulations made by the Secretary of State;

  • regulator” has the meaning given by section 54;

  • section 11 exemption” has the meaning given in section 11(3); and

  • the Treaty” means the treaty establishing the European Community.

  • [F95 the Tribunal” means the Competition Appeal Tribunal;

  • Tribunal rules” means rules under section 15 of the Enterprise Act 2002.]

(2)The fact that to a limited extent the Chapter I prohibition does not apply to an agreement, because of an exclusion provided by or under this Part or any other enactment, does not require those provisions of the agreement to which the exclusion relates to be disregarded when considering whether the agreement infringes the prohibition for other reasons.

(3)For the purposes of this Part, the power to require information, in relation to information recorded otherwise than in a legible form, includes power to require a copy of it in a legible form.

(4)Any power conferred on the [F96OFT] by this Part to require information includes power to require any document which [F96it] believes may contain that information.

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Amendments (Textual)

F91Words in s. 59(1) repealed (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 5 para. 6(a), Sch. 26; S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F93Words in s. 59(1) repealed (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(44)(a), Sch. 26; S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F94Words in s. 59(1) inserted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(44)(a); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F95Words in s. 59(1) inserted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 5 para. 6(b), Sch. 26; S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F96Words in s. 59(4) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(44)(b); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

Commencement Information

I7S. 59 wholly in force at 11.1.1999; s. 59 not in force at Royal Assent see s. 76(3); s. 59 in force for certain purposes at 26.11.1998 by S.I. 1998/2750, art. 2; s. 59 in force in so far as not already in force by S.I. 1998/3166, art. 2, Sch.

Marginal Citations

60 Principles to be applied in determining questions.E+W+S+N.I.

(1)The purpose of this section is to ensure that so far as is possible (having regard to any relevant differences between the provisions concerned), questions arising under this Part in relation to competition within the United Kingdom are dealt with in a manner which is consistent with the treatment of corresponding questions arising in Community law in relation to competition within the Community.

(2)At any time when the court determines a question arising under this Part, it must act (so far as is compatible with the provisions of this Part and whether or not it would otherwise be required to do so) with a view to securing that there is no inconsistency between—

(a)the principles applied, and decision reached, by the court in determining that question; and

(b)the principles laid down by the Treaty and the European Court, and any relevant decision of that Court, as applicable at that time in determining any corresponding question arising in Community law.

(3)The court must, in addition, have regard to any relevant decision or statement of the Commission.

(4)Subsections (2) and (3) also apply to—

(a)the [F97OFT]; and

(b)any person acting on behalf of the [F97OFT], in connection with any matter arising under this Part.

(5)In subsections (2) and (3), “court” means any court or tribunal.

(6)In subsections (2)(b) and (3), “decision” includes a decision as to—

(a)the interpretation of any provision of Community law;

(b)the civil liability of an undertaking for harm caused by its infringement of Community law.

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Amendments (Textual)

F97Word in s. 60 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(45); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

Modifications etc. (not altering text)

C26S. 60 applied by 1986 c. 46, s. 9A(11) (as inserted (20.6.2003) by Enterprise Act 2002 (c. 40), ss. 204(2), 279; S.I. 2003/1397, art. 2(1), Sch.)

Part IIE+W+S+N.I. Investigations in relation to Articles 85 and 86

61 Introduction.E+W+S+N.I.

(1)In this Part—

  • Article 85” and “Article 86” have the same meaning as in Part I;

  • authorised officer”, in relation to the [F98OFT], means an officer to whom an authorisation has been given under subsection (2);

  • the Commission” means the European Commission;

  • F99...

  • Commission investigation” means an investigation ordered by a decision of the Commission under a prescribed provision of Community law relating to Article 85 or 86;

  • [F100the OFT” means the Office of Fair Trading;]

  • [F101OFT’s investigation” means an investigation conducted by the OFT] at the request of the Commission under a prescribed provision of Community law relating to Article 85 or 86;

  • [F102OFT’s special investigation” means an OFT’s] investigation conducted at the request of the Commission in connection with a Commission investigation;

  • prescribed” means prescribed by order made by the Secretary of State;

  • premises” means—

    (a)

    in relation to a Commission investigation, any premises, land or means of transport which an official of the Commission has power to enter in the course of the investigation; and

    (b)

    in relation to [F103an OFT’s] investigation, any premises, land or means of transport which an official of the Commission would have power to enter if the investigation were being conducted by the Commission.

(2)For the purposes of [F104an OFT’s] investigation, an officer of the [F105OFT] to whom an authorisation has been given has the powers of an official authorised by the Commission in connection with a Commission investigation under the relevant provision.

(3)Authorisation” means an authorisation given in writing by the [F106OFT] which—

(a)identifies the officer;

(b)specifies the subject matter and purpose of the investigation; and

(c)draws attention to any penalties which a person may incur in connection with the investigation under the relevant provision of Community law.

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Amendments (Textual)

F98Word in s. 61(1) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(46)(a)(i); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F99Words in s. 61(1) repealed (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(46)(a)(ii), Sch. 26; S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F100Words in s. 61(1) inserted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(46)(a)(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.)

F101Words in s. 61(1) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(46)(a)(iv); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F102Words in s. 61(1) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(46)(a)(v); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F103Words in s. 61(1) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(46)(a)(vi); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F104Words in s. 61(2) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(46)(b)(i); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F105Word in s. 61(2) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(46)(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.)

F106Word in s. 61(3) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(46)(c); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

62 Power to enter premises: Commission investigations.E+W+S+N.I.

(1)A judge of the High Court may issue a warrant if satisfied, on an application made to the High Court in accordance with rules of court by the [F107OFT], that a Commission investigation is being, or is likely to be, obstructed.

(2)A Commission investigation is being obstructed if—

(a)an official of the Commission (“the Commission official”), exercising his power in accordance with the provision under which the investigation is being conducted, has attempted to enter premises but has been unable to do so; and

(b)there are reasonable grounds for suspecting that there are books or records on the premises which the Commission official has power to examine.

(3)A Commission investigation is also being obstructed if there are reasonable grounds for suspecting that there are books or records on the premises—

(a)the production of which has been required by an official of the Commission exercising his power in accordance with the provision under which the investigation is being conducted; and

(b)which have not been produced as required.

(4)A Commission investigation is likely to be obstructed if—

(a)an official of the Commission (“the Commission official”) is authorised for the purpose of the investigation;

(b)there are reasonable grounds for suspecting that there are books or records on the premises which the Commission official has power to examine; and

(c)there are also reasonable grounds for suspecting that, if the Commission official attempted to exercise his power to examine any of the books or records, they would not be produced but would be concealed, removed, tampered with or destroyed.

(5)A warrant under this section shall authorise—

(a)a named officer of the [F108OFT],

(b)any other of [F109the OFT’s officers whom the OFT] has authorised in writing to accompany the named officer, and

(c)any official of the Commission authorised for the purpose of the Commission investigation,

to enter the premises specified in the warrant, and search for books and records which the official has power to examine, using such force as is reasonably necessary for the purpose.

[F110(5A)A warrant under this section may authorise persons specified in the warrant to accompany the named officer who is executing it.]

(6)Any person entering any premises by virtue of a warrant under this section may take with him such equipment as appears to him to be necessary.

(7)On leaving any premises entered by virtue of the warrant the named officer must, if the premises are unoccupied or the occupier is temporarily absent, leave them as effectively secured as he found them.

(8)A warrant under this section continues in force until the end of the period of one month beginning with the day on which it is issued.

(9)In the application of this section to Scotland, references to the High Court are to be read as references to the Court of Session.

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Amendments (Textual)

F107Word in s. 62(1) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(47)(a); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F108Word in s. 62(5)(a) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(47)(b)(i); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F109Words in s. 62(5)(b) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(47)(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.)

63 Power to enter premises: [F111OFT’s] special investigations.E+W+S+N.I.

(1)A judge of the High Court may issue a warrant if satisfied, on an application made to the High Court in accordance with rules of court by the [F112OFT, that an OFT’s] special investigation is being, or is likely to be, obstructed.

(2)[F113An OFT’s] special investigation is being obstructed if—

(a)an authorised officer of the [F113OFT] has attempted to enter premises but has been unable to do so;

(b)the officer has produced his authorisation to the undertaking, or association of undertakings, concerned; and

(c)there are reasonable grounds for suspecting that there are books or records on the premises which the officer has power to examine.

(3)[F113An OFT’s] special investigation is also being obstructed if—

(a)there are reasonable grounds for suspecting that there are books or records on the premises which an authorised officer of the [F113OFT] has power to examine;

(b)the officer has produced his authorisation to the undertaking, or association of undertakings, and has required production of the books or records; and

(c)the books and records have not been produced as required.

(4)[F113An OFT’s] special investigation is likely to be obstructed if—

(a)there are reasonable grounds for suspecting that there are books or records on the premises which an authorised officer of the [F113OFT] has power to examine; and

(b)there are also reasonable grounds for suspecting that, if the officer attempted to exercise his power to examine any of the books or records, they would not be produced but would be concealed, removed, tampered with or destroyed.

(5)A warrant under this section shall authorise—

(a)a named authorised officer of the [F114OFT],

(b)any other authorised officer accompanying the named officer, and

(c)any named official of the Commission,

to enter the premises specified in the warrant, and search for books and records which the authorised officer has power to examine, using such force as is reasonably necessary for the purpose.

[F115(5A)A warrant under this section may authorise persons specified in the warrant to accompany the named authorised officer who is executing it.]

(6)Any person entering any premises by virtue of a warrant under this section may take with him such equipment as appears to him to be necessary.

(7)On leaving any premises which he has entered by virtue of the warrant the named officer must, if the premises are unoccupied or the occupier is temporarily absent, leave them as effectively secured as he found them.

(8)A warrant under this section continues in force until the end of the period of one month beginning with the day on which it is issued.

(9)In the application of this section to Scotland, references to the High Court are to be read as references to the Court of Session.

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Amendments (Textual)

F111Word in s. 63 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(48)(d); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F112Words in s. 63(1) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(48)(a); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F113Words in s. 63(2)-(4) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(48)(b); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F114Word in s. 63(5) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(48)(c); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

64 Entry of premises under sections 62 and 63: supplementary.E+W+S+N.I.

(1)A warrant issued under section 62 or 63 must indicate—

(a)the subject matter and purpose of the investigation;

(b)the nature of the offence created by section 65.

(2)The powers conferred by section 62 or 63 are to be exercised on production of a warrant issued under that section.

(3)If there is no one at the premises when the named officer proposes to execute such a warrant he must, before executing it—

(a)take such steps as are reasonable in all the circumstances to inform the occupier of the intended entry; and

(b)if the occupier is informed, afford him or his legal or other representative a reasonable opportunity to be present when the warrant is executed.

(4)If the named officer is unable to inform the occupier of the intended entry he must, when executing the warrant, leave a copy of it in a prominent place on the premises.

(5)In this section—

  • named officer” means the officer named in the warrant; and

  • occupier”, in relation to any premises, means a person whom the named officer reasonably believes is the occupier of those premises.

65 Offences.E+W+S+N.I.

(1)A person is guilty of an offence if he intentionally obstructs any person in the exercise of his powers under a warrant issued under section 62 or 63.

(2)A person guilty of an offence under subsection (1) is liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum;

(b)on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.

Part IIIE+W+S+N.I. Monopolies

F11666 Monopoly investigations: general.E+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F11667 Offences.E+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

68 Services relating to use of land.E+W+S+N.I.

In section 137 of the Fair Trading Act 1973, after subsection (3) insert—

(3A)The Secretary of State may by order made by statutory instrument—

(a)provide that “the supply of services” in the provisions of this Act is to include, or to cease to include, any activity specified in the order which consists in, or in making arrangements in connection with, permitting the use of land; and

(b)for that purpose, amend or repeal any of paragraphs (c), (d), (e) or (g) of subsection (3) above.

(3B)No order under subsection (3A) above is to be made unless a draft of the order has been laid before Parliament and approved by a resolution of each House of Parliament.

(3C)The provisions of Schedule 9 to this Act apply in the case of a draft of any such order as they apply in the case of a draft of an order to which section 91(1) above applies.

69 Reports: monopoly references.E+W+S+N.I.

In section 83 of the M5Fair Trading Act 1973—

(a)in subsection (1), omit “Subject to subsection (1A) below”; and

(b)omit subsection (1A) (reports on monopoly references to be transmitted to certain persons at least twenty-four hours before laying before Parliament).

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Marginal Citations

Part IVE+W+S+N.I. Supplemental and Transitional

70 Contracts as to patented products etc.E+W+S+N.I.

Sections 44 and 45 of the M6Patents Act 1977 shall cease to have effect.

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Marginal Citations

71 Regulations, orders and rules.E+W+S+N.I.

(1)Any power to make regulations or orders which is conferred by this Act is exercisable by statutory instrument.

(2)The power to make rules which is conferred by section 48 is exercisable by statutory instrument.

(3)Any statutory instrument made under this Act may—

(a)contain such incidental, supplemental, consequential and transitional provision as the Secretary of State considers appropriate; and

(b)make different provision for different cases.

(4)No order is to be made under—

(a)section 3,

(b)section 19,

(c)section 36(8),

[F117(ca)section 45(8),]

(d)section 50, or

(e)paragraph 6(3) of Schedule 4,

unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

(5)Any statutory instrument made under this Act, apart from one made—

(a)under any of the provisions mentioned in subsection (4), or

(b)under section 76(3),

shall be subject to annulment by a resolution of either House of Parliament.

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Amendments (Textual)

72 Offences by bodies corporate etc.E+W+S+N.I.

(1)This section applies to an offence under any of sections 42 to 44, 55(8) or 65.

(2)If an offence committed by a body corporate is proved—

(a)to have been committed with the consent or connivance of an officer, or

(b)to be attributable to any neglect on his part,

the officer as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.

(3)In subsection (2) “officer”, in relation to a body corporate, means a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity.

(4)If the affairs of a body corporate are managed by its members, subsection (2) applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

(5)If an offence committed by a partnership in Scotland is proved—

(a)to have been committed with the consent or connivance of a partner, or

(b)to be attributable to any neglect on his part,

the partner as well as the partnership is guilty of the offence and liable to be proceeded against and punished accordingly.

(6)In subsection (5) “partner” includes a person purporting to act as a partner.

73 Crown application.E+W+S+N.I.

(1)Any provision made by or under this Act binds the Crown except that—

(a)the Crown is not criminally liable as a result of any such provision;

(b)the Crown is not liable for any penalty under any such provision; and

(c)nothing in this Act affects Her Majesty in her private capacity.

(2)Subsection (1)(a) does not affect the application of any provision of this Act in relation to persons in the public service of the Crown.

(3)Subsection (1)(c) is to be interpreted as if section 38(3) of the M7Crown Proceedings Act 1947 (interpretation of references in that Act to Her Majesty in her private capacity) were contained in this Act.

(4)If, in respect of a suspected infringement of the Chapter I prohibition or of the Chapter II prohibition otherwise than by the Crown or a person in the public service of the Crown, an investigation is conducted under section 25—

(a)the power conferred by section 27 may not be exercised in relation to land which is occupied by a government department, or otherwise for purposes of the Crown, without the written consent of the appropriate person; and

(b)section 28 does not apply in relation to land so occupied.

(5)In any case in which consent is required under subsection (4), the person who is the appropriate person in relation to that case is to be determined in accordance with regulations made by the Secretary of State.

(6)Sections 62 and 63 do not apply in relation to land which is occupied by a government department, or otherwise for purposes of the Crown, unless the matter being investigated is a suspected infringement by the Crown or by a person in the public service of the Crown.

(7)In subsection (6) “infringement” means an infringement of Community law relating to Article 85 or 86 of the Treaty establishing the European Community.

(8)If the Secretary of State certifies that it appears to him to be in the interests of national security that the powers of entry—

(a)conferred by section 27, or

(b)that may be conferred by a warrant under section 28, 62 or 63,

should not be exercisable in relation to premises held or used by or on behalf of the Crown and which are specified in the certificate, those powers are not exercisable in relation to those premises.

(9)Any amendment, repeal or revocation made by this Act binds the Crown to the extent that the enactment amended, repealed or revoked binds the Crown.

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Marginal Citations

74 Amendments, transitional provisions, savings and repeals.E+W+S+N.I.

(1)The minor and consequential amendments set out in Schedule 12 are to have effect.

(2)The transitional provisions and savings set out in Schedule 13 are to have effect.

(3)The enactments set out in Schedule 14 are repealed.

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Commencement Information

I8S. 74 partly in force; s. 74 not in force at Royal Assent see s. 76(3); s. 74 in force for certain purposes at 1.11.1999 by S.I. 1998/3166, art. 2, Sch.; s. 74(1)(3) in force for certain purposes at 1.4.1999 by S.I. 1999/505, art. 2, Sch. 2; s. 74 in force for certain purposes at 1.3.2000 by S.I. 2000/344, art. 2, Sch.

75 Consequential and supplementary provision.E+W+S+N.I.

(1)The Secretary of State may by order make such incidental, consequential, transitional or supplemental provision as he thinks necessary or expedient for the general purposes, or any particular purpose, of this Act or in consequence of any of its provisions or for giving full effect to it.

(2)An order under subsection (1) may, in particular, make provision—

(a)for enabling any person by whom any powers will become exercisable, on a date specified by or under this Act, by virtue of any provision made by or under this Act to take before that date any steps which are necessary as a preliminary to the exercise of those powers;

(b)for making savings, or additional savings, from the effect of any repeal made by or under this Act.

(3)Amendments made under this section shall be in addition, and without prejudice, to those made by or under any other provision of this Act.

(4)No other provision of this Act restricts the powers conferred by this section.

76 Short title, commencement and extent.E+W+S+N.I.

(1)This Act may be cited as the Competition Act 1998.

(2)Sections 71 and 75 and this section and paragraphs 1 to 7 and 35 of Schedule 13 come into force on the passing of this Act.

(3)The other provisions of this Act come into force on such day as the Secretary of State may by order appoint; and different days may be appointed for different purposes.

(4)This Act extends to Northern Ireland.

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Subordinate Legislation Made

P1S. 76 power partly exercised (9.11.1998): 26.11.1998 appointed for specified provisions by S.I. 1998/2750, art. 2

P2S. 76 power partly exercised (16.12.1998): 11.1.1999 appointed for specified provisions by S.I. 1998/3166, art. 2, Sch.

P3S. 76 power partly exercised (2.3.1999): 1.4.1999 appointed for specified provisions by S.I. 1999/505, art. 2, Sch. 2

P4S. 76 power partly exercised (19.10.1999): 10.11.1999 appointed for specified provisions by S.I. 1999/2859, art. 2

SCHEDULES

Sections 3(1)(a) and 19(1)(a).

SCHEDULE 1E+W+S+N.I. Exclusions: Mergers and Concentrations

Part IE+W+S+N.I. Mergers

Enterprises ceasing to be distinct: the Chapter I prohibitionE+W+S+N.I.

1(1)To the extent to which an agreement (either on its own or when taken together with another agreement) results, or if carried out would result, in any two enterprises ceasing to be distinct enterprises for the purposes of [F118Part V of the M8Fair Trading Act 1973 (“the 1973 Act”)] [F118Part 3 of the Enterprise Act 2002 (“the 2002 Act”)], the Chapter I prohibition does not apply to the agreement.E+W+S+N.I.

(2)The exclusion provided by sub-paragraph (1) extends to any provision directly related and necessary to the implementation of the merger provisions.

(3)In sub-paragraph (2) “merger provisions” means the provisions of the agreement which cause, or if carried out would cause, the agreement to have the result mentioned in sub-paragraph (1).

(4)[F119Section 65 of the 1973 Act] [F119Section 26 of the 2002 Act] applies for the purposes of this paragraph as if—

(a)in subsection (3) (circumstances in which a person or group of persons may be treated as having control of an enterprise), and

(b)in subsection (4) (circumstances in which a person or group of persons may be treated as bringing an enterprise under their control),

for “may” there were substituted “ must ”.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F118Words in Sch. 1 para. 1(1) substituted (20.6.2003 for specified purposes) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(50)(a)(i); S.I. 2003/1397, art. 2(1), Sch. (with arts. 3(1) 8)

F119Words in Sch. 1 para. 1(4) substituted (20.6.2003 for specified purposes) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(50)(a)(ii); S.I. 2003/1397, art. 2(1), Sch. (with arts. 3(1) 8)

Marginal Citations

Enterprises ceasing to be distinct: the Chapter II prohibitionE+W+S+N.I.

2(1)To the extent to which conduct (either on its own or when taken together with other conduct)—E+W+S+N.I.

(a)results in any two enterprises ceasing to be distinct enterprises for the purposes of [F120Part V of the 1973 Act] [F120Part 3 of the 2002 Act]), or

(b)is directly related and necessary to the attainment of the result mentioned in paragraph (a),

the Chapter II prohibition does not apply to that conduct.

(2)[F121Section 65 of the 1973 Act] [F121Section 26 of the 2002 Act] applies for the purposes of this paragraph as it applies for the purposes of paragraph 1.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F120Words in Sch. 1 para. 2(1)(a) substituted (20.6.2003 for specified purposes) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(50)(b)(i); S.I. 2003/1397, art. 2(1), Sch. (with arts. 3(1) 8)

F121Words in Sch. 1 para. 2(2) substituted (20.6.2003 for specified purposes) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(50)(b)(ii); S.I. 2003/1397, art. 2(1), Sch. (with arts. 3(1) 8)

Transfer of a newspaper or of newspaper assetsE+W+S+N.I.

3(1)The Chapter I prohibition does not apply to an agreement to the extent to which it constitutes, or would if carried out constitute, a transfer of a newspaper or of newspaper assets for the purposes of section 57 of the 1973 Act.E+W+S+N.I.

(2)The Chapter II prohibition does not apply to conduct (either on its own or when taken together with other conduct) to the extent to which—

(a)it constitutes such a transfer, or

(b)it is directly related and necessary to the implementation of the transfer.

(3)The exclusion provided by sub-paragraph (1) extends to any provision directly related and necessary to the implementation of the transfer.

Withdrawal of the paragraph 1 exclusionE+W+S+N.I.

4(1)The exclusion provided by paragraph 1 does not apply to a particular agreement if the [F122OFT] gives a direction under this paragraph to that effect.E+W+S+N.I.

(2)If the [F122OFT] is considering whether to give a direction under this paragraph, [F123it] may by notice in writing require any party to the agreement in question to give [F123the OFT] such information in connection with the agreement as [F123it] may require.

(3)The [F122OFT] may give a direction under this paragraph only as provided in sub-paragraph (4) or (5).

(4)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 (2), the [F122OFT] may give a direction under this paragraph.

(5)The [F122OFT] may also give a direction under this paragraph if—

(a)[F124it] considers—

(i)that the agreement will, if not excluded, infringe the Chapter I prohibition; and

(ii)that [F124it] is not likely to grant it an unconditional individual exemption; and

(b)the agreement is not a protected agreement.

(6)For the purposes of sub-paragraph (5), an individual exemption is unconditional if no conditions or obligations are imposed in respect of it under section 4(3)(a).

(7)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).

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F122Word in Sch. 1 para. 4 substituted (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(50)(c)(i); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

F123Words in Sch. 1 para. 4(2) substituted (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(50)(c)(ii); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

Modifications etc. (not altering text)

C27Sch. 1 para. 4 applied (1.3.2000) by S.I. 2000/310, art. 7

Protected agreementsE+W+S+N.I.

5An agreement is a protected agreement for the purposes of paragraph 4 if—

[F125(a)the OFT or (as the case may be) the Secretary of State has published its or his decision not to make a reference to the Competition Commission under section 22, 33, 45 or 62 of the 2002 Act in connection with the agreement;

(b)the OFT or (as the case may be) the Secretary of State has made a reference to the Competition Commission under section 22, 33, 45 or 62 of the 2002 Act in connection with the agreement and the Commission has found that the agreement has given rise to, or would if carried out give rise to, a relevant merger situation or (as the case may be) a special merger situation;

(c)the agreement does not fall within paragraph (a) or (b) but has given rise to, or would if carried out give rise to, enterprises to which it relates being regarded under section 26 of the 2002 Act as ceasing to be distinct enterprises (otherwise than as the result of subsection (3) or (4)(b) of that section); or

(d)the OFT has made a reference to the Competition Commission under section 32 of the Water Industry Act 1991 in connection with the agreement and the Commission has found that the agreement has given rise to, or would if carried out give rise to, a merger of any two or more water enterprises of the kind to which that section applies.]

Annotations: Help about Annotation
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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F125Sch. 1 para. 5(a)(d) substituted (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(50)(d); S.I. 2003/1397, art. 2(1), Sch. (with arts. 3(4) 8)

Modifications etc. (not altering text)

Part IIE+W+S+N.I. Concentrations subject to EC controls

6(1)To the extent to which an agreement (either on its own or when taken together with another agreement) gives rise to, or would if carried out give rise to, a concentration, the Chapter I prohibition does not apply to the agreement if the Merger Regulation gives the Commission exclusive jurisdiction in the matter.E+W+S+N.I.

(2)To the extent to which conduct (either on its own or when taken together with other conduct) gives rise to, or would if pursued give rise to, a concentration, the Chapter II prohibition does not apply to the conduct if the Merger Regulation gives the Commission exclusive jurisdiction in the matter.

(3)In this paragraph—

  • concentration” means a concentration with a Community dimension within the meaning of Articles 1 and 3 of the Merger Regulation; and

  • Merger Regulation” means Council Regulation (EEC) No. 4064/89 of 21st December 1989 on the control of concentrations between undertakings as amended by Council Regulation (EC) No. 1310/97 of 30th June 1997.

Section 3(1)(b).

SCHEDULE 2E+W+S+N.I. Exclusions: Other Competition Scrutiny

Part IE+W+S+N.I. Financial Services

The Financial Services Act 1986 (c.60)E+W+S+N.I.

1(1)The Financial Services Act 1986 is amended as follows.E+W+S+N.I.

(2)For section 125 (effect of the M9Restrictive Trade Practices Act 1976), substitute—

125 The Competition Act 1998: Chapter I prohibition.

(1)The Chapter I prohibition does not apply to an agreement for the constitution of—

(a)a recognised self-regulating organisation,

(b)a recognised investment exchange, or

(c)a recognised clearing house,

to the extent to which the agreement relates to the regulating provisions of the body concerned.

(2)Subject to subsection (3) below, the Chapter I prohibition does not apply to an agreement for the constitution of—

(a)a self-regulating organisation,

(b)an investment exchange, or

(c)a clearing house,

to the extent to which the agreement relates to the regulating provisions of the body concerned.

(3)The exclusion provided by subsection (2) above applies only if—

(a)the body has applied for a recognition order in accordance with the provisions of this Act; and

(b)the application has not been determined.

(4)The Chapter I prohibition does not apply to a decision made by—

(a)a recognised self-regulating organisation,

(b)a recognised investment exchange, or

(c)a recognised clearing house,

to the extent to which the decision relates to any of that body’s regulating provisions or specified practices.

(5)The Chapter I prohibition does not apply to the specified practices of—

(a)a recognised self-regulating organisation, a recognised investment exchange or a recognised clearing house; or

(b)a person who is subject to—

(i)the rules of one of those bodies, or

(ii)the statements of principle, rules, regulations or codes of practice made by a designated agency in the exercise of functions transferred to it by a delegation order.

(6)The Chapter I prohibition does not apply to any agreement the parties to which consist of or include—

(a)a recognised self-regulating organisation, a recognised investment exchange or a recognised clearing house; or

(b)a person who is subject to—

(i)the rules of one of those bodies, or

(ii)the statements of principle, rules, regulations or codes of practice made by a designated agency in the exercise of functions transferred to it by a delegation order,

to the extent to which the agreement consists of provisions the inclusion of which is required or contemplated by any of the body’s regulating provisions or specified practices or by the statements of principle, rules, regulations or codes of practice of the agency.

(7)The Chapter I prohibition does not apply to—

(a)any clearing arrangements; or

(b)any agreement between a recognised investment exchange and a recognised clearing house, to the extent to which the agreement consists of provisions the inclusion of which in the agreement is required or contemplated by any clearing arrangements.

(8)If the recognition order in respect of a body of the kind mentioned in subsection (1)(a), (b) or (c) above is revoked, subsections (1) and (4) to (7) above are to have effect as if that body had continued to be recognised until the end of the period of six months beginning with the day on which the revocation took effect.

(9)In this section—

  • the Chapter I prohibition” means the prohibition imposed by section 2(1) of the Competition Act 1998;

  • regulating provisions” means—

    (a)

    in relation to a self-regulating organisation, any rules made, or guidance issued, by the organisation;

    (b)

    in relation to an investment exchange, any rules made, or guidance issued, by the exchange;

    (c)

    in relation to a clearing house, any rules made, or guidance issued, by the clearing house;

  • specified practices” means—

    (a)

    in the case of a recognised self-regulating organisation, the practices mentioned in section 119(2)(a)(ii) and (iii) above (read with section 119(5) and (6)(a));

    (b)

    in the case of a recognised investment exchange, the practices mentioned in section 119(2)(b)(ii) and (iii) above (read with section 119(5) and (6)(b));

    (c)

    in the case of a recognised clearing house, the practices mentioned in section 119(2)(c)(ii) and (iii) above (read with section 119(5) and (6)(b));

    (d)

    in the case of a person who is subject to the statements of principle, rules, regulations or codes of practice issued or made by a designated agency in the exercise of functions transferred to it by a delegation order, the practices mentioned in section 121(2)(c) above (read with section 121(4));

    and expressions used in this section which are also used in Part I of the Competition Act 1998 are to be interpreted in the same way as for the purposes of that Part of that Act.

(3)Omit section 126 (certain practices not to constitute anti-competitive practices for the purposes of the M10Competition Act 1980).

(4)For section 127 (modification of statutory provisions in relation to recognised professional bodies), substitute—

127 Application of Competition Act 1998 in relation to recognised professional bodies: Chapter I prohibition.

(1)This section applies to—

(a)any agreement for the constitution of a recognised professional body to the extent to which it relates to the rules or guidance of that body relating to the carrying on of investment business by persons certified by it (“investment business rules”); and

(b)any other agreement, the parties to which consist of or include—

(i)a recognised professional body,

(ii)a person certified by such a body, or

(iii)a member of such a body,

and which contains a provision required or contemplated by that body’s investment business rules.

(2)If it appears to the Treasury, in relation to some or all of the provisions of an agreement to which this section applies—

(a)that the provisions in question do not have, and are not intended or likely to have, to any significant extent the effect of restricting, distorting or preventing competition; or

(b)that the effect of restricting, distorting or preventing competition which the provisions in question do have, or are intended or are likely to have, is not greater than is necessary for the protection of investors,

the Treasury may make a declaration to that effect.

(3)If the Treasury make a declaration under this section, the Chapter I prohibition does not apply to the agreement to the extent to which the agreement consists of provisions to which the declaration relates.

(4)If the Treasury are satisfied that there has been a material change of circumstances, they may—

(a)revoke a declaration made under this section, if they consider that the grounds on which it was made no longer exist;

(b)vary such a declaration, if they consider that there are grounds for making a different declaration; or

(c)make a declaration even though they have notified the Director of their intention not to do so.

(5)If the Treasury make, vary or revoke a declaration under this section they must notify the Director of their decision.

(6)If the Director proposes to exercise any Chapter III powers in respect of any provisions of an agreement to which this section applies, he must—

(a)notify the Treasury of his intention to do so; and

(b)give the Treasury particulars of the agreement and such other information—

(i)as he considers will assist the Treasury to decide whether to exercise their powers under this section; or

(ii)as the Treasury may request.

(7)The Director may not exercise his Chapter III powers in respect of any provisions of an agreement to which this section applies, unless the Treasury—

(a)have notified him that they have not made a declaration in respect of those provisions under this section and that they do not intend to make such a declaration; or

(b)have revoked a declaration under this section and a period of six months beginning with the date on which the revocation took effect has expired.

(8)A declaration under this section ceases to have effect if the agreement to which it relates ceases to be one to which this section applies.

(9)In this section—

  • the Chapter I prohibition” means the prohibition imposed by section 2(1) of the Competition Act 1998,

  • Chapter III powers” means the powers given to the Director by Chapter III of Part I of that Act so far as they relate to the Chapter I prohibition, and

expressions used in this section which are also used in Part I of the Competition Act 1998 are to be interpreted in the same way as for the purposes of that Part of that Act.

(10)In this section references to an agreement are to be read as applying equally to, or in relation to, a decision or concerted practice.

(11)In the application of this section to decisions and concerted practices, references to provisions of an agreement are to be read as references to elements of a decision or concerted practice.

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Marginal Citations

Part IIE+W+S+N.I. Companies

The Companies Act 1989 (c.40)E+W+S+N.I.

2(1)The Companies Act 1989 is amended as follows.E+W+S+N.I.

(2)In Schedule 14, for paragraph 9 (exclusion of certain agreements from the M11Restrictive Trade Practices Act 1976), substitute—

The Competition Act 1998E+W+S+N.I.

9(1)The Chapter I prohibition does not apply to an agreement for the constitution of a recognised supervisory or qualifying body to the extent to which it relates to—

(a)rules of, or guidance issued by, the body; and

(b)incidental matters connected with the rules or guidance.

(2)The Chapter I prohibition does not apply to an agreement the parties to which consist of or include—

(a)a recognised supervisory or qualifying body, or

(b)any person mentioned in paragraph 3(5) or (6) above,

to the extent to which the agreement consists of provisions the inclusion of which in the agreement is required or contemplated by the rules or guidance of that body.

(3)The Chapter I prohibition does not apply to the practices mentioned in paragraph 3(4)(a) and (b) above.

(4)Where a recognition order is revoked, sub-paragraphs (1) to (3) above are to continue to apply for a period of six months beginning with the day on which the revocation takes effect, as if the order were still in force.

(5)In this paragraph—

(a)the Chapter I prohibition” means the prohibition imposed by section 2(1) of the Competition Act 1998,

(b)references to an agreement are to be read as applying equally to, or in relation to, a decision or concerted practice,

and expressions used in this paragraph which are also used in Part I of the Competition Act 1998 are to be interpreted in the same way as for the purposes of that Part of that Act.

(6)In the application of this paragraph to decisions and concerted practices, references to provisions of an agreement are to be read as references to elements of a decision or concerted practice.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Marginal Citations

The Companies (Northern Ireland) Order 1990 (S.I. 1990/593 (N.I. 5))E+W+S+N.I.

3(1)The Companies (Northern Ireland) Order 1990 is amended as follows.E+W+S+N.I.

(2)In Schedule 14, for paragraph 9 (exclusion of certain agreements from the Restrictive Trade Practices Act 1976), substitute—

The Competition Act 1998E+W+S+N.I.

9(1)The Chapter I prohibition does not apply to an agreement for the constitution of a recognised supervisory or qualifying body to the extent to which it relates to—

(a)rules of, or guidance issued by, the body; and

(b)incidental matters connected with the rules or guidance.

(2)The Chapter I prohibition does not apply to an agreement the parties to which consist of or include—

(a)a recognised supervisory or qualifying body, or

(b)any person mentioned in paragraph 3(5) or (6),

to the extent to which the agreement consists of provisions the inclusion of which in the agreement is required or contemplated by the rules or guidance of that body.

(3)The Chapter I prohibition does not apply to the practices mentioned in paragraph 3(4)(a) and (b).

(4)Where a recognition order is revoked, sub-paragraphs (1) to (3) are to continue to apply for a period of 6 months beginning with the day on which the revocation takes effect, as if the order were still in force.

(5)In this paragraph—

(a)the Chapter I prohibition” means the prohibition imposed by section 2(1) of the Competition Act 1998,

(b)references to an agreement are to be read as applying equally to, or in relation to, a decision or concerted practice,

and expressions used in this paragraph which are also used in Part I of the Competition Act 1998 are to be interpreted in the same way as for the purposes of that Part of that Act.

(6)In the application of this paragraph to decisions and concerted practices, references to provisions of an agreement are to be read as references to elements of a decision or concerted practice.

Part IIIE+W+S+N.I. Broadcasting

The Broadcasting Act 1990 (c.42)E+W+S+N.I.

4(1)The Broadcasting Act 1990 is amended as follows.E+W+S+N.I.

(2)In section 194A (which modifies the M12Restrictive Trade Practices Act 1976 in its application to agreements relating to Channel 3 news provision), for subsections (2) to (6), substitute—

(2)If, having sought the advice of the Director, it appears to the Secretary of State, in relation to some or all of the provisions of a relevant agreement, that the conditions mentioned in subsection (3) are satisfied, he may make a declaration to that effect.

(3)The conditions are that—

(a)the provisions in question do not have, and are not intended or likely to have, to any significant extent the effect of restricting, distorting or preventing competition; or

(b)the effect of restricting, distorting or preventing competition which the provisions in question do have or are intended or are likely to have, is not greater than is necessary—

(i)in the case of a relevant agreement falling within subsection (1)(a), for securing the appointment by holders of regional Channel 3 licences of a single body corporate to be the appointed news provider for the purposes of section 31(2), or

(ii)in the case of a relevant agreement falling within subsection (1)(b), for compliance by them with conditions included in their licences by virtue of section 31(1) and (2).

(4)If the Secretary of State makes a declaration under this section, the Chapter I prohibition does not apply to the agreement to the extent to which the agreement consists of provisions to which the declaration relates.

(5)If the Secretary of State is satisfied that there has been a material change of circumstances, he may—

(a)revoke a declaration made under this section, if he considers that the grounds on which it was made no longer exist;

(b)vary such a declaration, if he considers that there are grounds for making a different declaration; or

(c)make a declaration, even though he has notified the Director of his intention not to do so.

(6)If the Secretary of State makes, varies or revokes a declaration under this section, he must notify the Director of his decision.

(7)The Director may not exercise any Chapter III powers in respect of a relevant agreement, unless—

(a)he has notified the Secretary of State of his intention to do so; and

(b)the Secretary of State—

(i)has notified the Director that he has not made a declaration in respect of the agreement, or provisions of the agreement, under this section and that he does not intend to make such a declaration; or

(ii)has revoked a declaration under this section and a period of six months beginning with the date on which the revocation took effect has expired.

(8)If the Director proposes to exercise any Chapter III powers in respect of a relevant agreement, he must give the Secretary of State particulars of the agreement and such other information—

(a)as he considers will assist the Secretary of State to decide whether to exercise his powers under this section; or

(b)as the Secretary of State may request.

(9)In this section—

  • the Chapter I prohibition” means the prohibition imposed by section 2(1) of the Competition Act 1998;

  • Chapter III powers” means the powers given to the Director by Chapter III of Part I of that Act so far as they relate to the Chapter I prohibition;

  • Director” means the Director General of Fair Trading;

  • regional Channel 3 licence” has the same meaning as in Part I;

and expressions used in this section which are also used in Part I of the Competition Act 1998 are to be interpreted in the same way as for the purposes of that Part of that Act.

(10)In this section references to an agreement are to be read as applying equally to, or in relation to, a decision or concerted practice.

(11)In the application of this section to decisions and concerted practices, references to provisions of an agreement are to be read as references to elements of a decision or concerted practice.

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Marginal Citations

Networking arrangements under the Broadcasting Act 1990 (c.42)E+W+S+N.I.

5(1)The Chapter I prohibition does not apply in respect of any networking arrangements to the extent to which they—E+W+S+N.I.

(a)are subject to Schedule 4 to the Broadcasting Act 1990 (competition references with respect to networking arrangements); or

(b)contain provisions which have been considered under that Schedule.

(2)The Independent Television Commission (“ITC”) must publish a list of the networking arrangements which in their opinion are excluded from the Chapter I prohibition by virtue of sub-paragraph (1).

(3)The ITC must—

(a)consult the Director before publishing the list, and

(b)publish the list in such a way as they think most suitable for bringing it to the attention of persons who, in their opinion, would be affected by, or likely to have an interest in, it.

(4)In this paragraph “networking arrangements” means—

(a)any arrangements entered into as mentioned in section 39(4) or (7)(b) of the Broadcasting Act 1990, or

(b)any agreements—

(i)which do not constitute arrangements of the kind mentioned in paragraph (a), but

(ii)which are made for the purpose mentioned in section 39(1) of that Act, or

(c)any modification of the arrangements or agreements mentioned in paragraph (a) or (b).

Part IVE+W+S+N.I. Environmental Protection

Producer responsibility obligationsE+W+S+N.I.

6(1)The M13Environment Act 1995 is amended as follows.E+W+S+N.I.

(2)In section 94(1) (supplementary provisions about regulations imposing producer responsibility obligations on prescribed persons), after paragraph (o), insert—

(oa)the exclusion or modification of any provision of Part I of the Competition Act 1998 in relation to exemption schemes or in relation to any agreement, decision or concerted practice at least one of the parties to which is an operator of an exemption scheme;.

(3)After section 94(6), insert—

(6A)Expressions used in paragraph (oa) of subsection (1) above which are also used in Part I of the Competition Act 1998 are to be interpreted in the same way as for the purposes of that Part of that Act.

(4)After section 94, insert—

94A Producer responsibility: competition matters.

(1)For the purposes of this section, the relevant paragraphs are paragraphs (n), (o), (oa) and (ya) of section 94(1) above.

(2)Regulations made by virtue of any of the relevant paragraphs may include transitional provision in respect of agreements or exemption schemes—

(a)in respect of which information has been required for the purposes of competition scrutiny under any regulation made by virtue of paragraph (ya);

(b)which are being, or have been, considered for the purposes of competition scrutiny under any regulation made by virtue of paragraph (n) or (ya); or

(c)in respect of which provisions of the M14Restrictive Trade Practices Acts 1976 and M151977 have been modified or excluded in accordance with any regulation made by virtue of paragraph (o).

(3)Subsections (2), (3), (5) to (7) and (10) of section 93 above do not apply to a statutory instrument which contains only regulations made by virtue of any of the relevant paragraphs or subsection (2) above.

(4)Such a statutory instrument shall be subject to annulment in pursuance of a resolution of either House of Parliament.

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Marginal Citations

Sections 3(1)(c) and 19(1)(b).

SCHEDULE 3E+W+S+N.I. General Exclusions

Planning obligationsE+W+S+N.I.

1(1)The Chapter I prohibition does not apply to an agreement—E+W+S+N.I.

(a)to the extent to which it is a planning obligation;

(b)which is made under section 75 (agreements regulating development or use of land) or 246 (agreements relating to Crown land) of the M16Town and Country Planning (Scotland) Act 1997; or

(c)which is made under Article 40 of the M17Planning (Northern Ireland) Order 1991.

(2)In sub-paragraph (1)(a), “planning obligation” means—

(a)a planning obligation for the purposes of section 106 of the M18Town and Country Planning Act 1990; or

(b)a planning obligation for the purposes of section 299A of that Act.

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Marginal Citations

Section 21(2) agreementsE+W+S+N.I.

2(1)The Chapter I prohibition does not apply to an agreement in respect of which a direction under section 21(2) of the M19Restrictive Trade Practices Act 1976 is in force immediately before the coming into force of section 2 (“a section 21(2) agreement”).E+W+S+N.I.

(2)If a material variation is made to a section 21(2) agreement, sub-paragraph (1) ceases to apply to the agreement on the coming into force of the variation.

(3)Sub-paragraph (1) does not apply to a particular section 21(2) agreement if the [F126OFT] gives a direction under this paragraph to that effect.

(4)If the [F126OFT] is considering whether to give a direction under this paragraph, [F127it] may by notice in writing require any party to the agreement in question to give [F127the OFT] such information in connection with the agreement as [F127it] may require.

(5)The [F126OFT] 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 [F126OFT] may give a direction under this paragraph.

(7)The [F126OFT] may also give a direction under this paragraph [F128if it] considers—

(a)that the agreement will, if not excluded, infringe the Chapter I prohibition; and

(b)that [F128the OFT is]not likely to grant it an unconditional individual exemption.

(8)For the purposes of sub-paragraph (7) an individual exemption is unconditional if no conditions or obligations are imposed in respect of it under section 4(3)(a).

(9)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).

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Amendments (Textual)

F126Word in Sch. 3 para. 2 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(51)(a)(i); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F127Words in Sch. 3 para. 2(4) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(51)(a)(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.)

F128Words in Sch. 3 para. 2(7) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(51)(a)(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.)

Marginal Citations

EEA Regulated MarketsE+W+S+N.I.

3(1)The Chapter I prohibition does not apply to an agreement for the constitution of an EEA regulated market to the extent to which the agreement relates to any of the rules made, or guidance issued, by that market.E+W+S+N.I.

(2)The Chapter I prohibition does not apply to a decision made by an EEA regulated market, to the extent to which the decision relates to any of the market’s regulating provisions.

(3)The Chapter I prohibition does not apply to—

(a)any practices of an EEA regulated market; or

(b)any practices which are trading practices in relation to an EEA regulated market.

(4)The Chapter I prohibition does not apply to an agreement the parties to which are or include—

(a)an EEA regulated market, or

(b)a person who is subject to the rules of that market,

to the extent to which the agreement consists of provisions the inclusion of which is required or contemplated by the regulating provisions of that market.

(5)In this paragraph—

  • EEA regulated market” is a market which—

    (a)

    is listed by an EEA State other than the United Kingdom pursuant to article 16 of Council Directive No. 93/22/EEC of 10th May 1993 on investment services in the securities field; and

    (b)

    operates without any requirement that a person dealing on the market should have a physical presence in the EEA State from which any trading facilities are provided or on any trading floor that the market may have;

  • EEA State” means a State which is a contracting party to the EEA Agreement;

  • regulating provisions”, in relation to an EEA regulated market, means—

    (a)

    rules made, or guidance issued, by that market,

    (b)

    practices of that market, or

    (c)

    practices which, in relation to that market, are trading practices;

  • trading practices”, in relation to an EEA regulated market, means practices of persons who are subject to the rules made by that market, and—

    (a)

    which relate to business in respect of which those persons are subject to the rules of that market, and which are required or contemplated by those rules or by guidance issued by that market; or

    (b)

    which are otherwise attributable to the conduct of that market as such.

Services of general economic interest etc.E+W+S+N.I.

4Neither the Chapter I prohibition nor the Chapter II prohibition applies to an undertaking entrusted with the operation of services of general economic interest or having the character of a revenue-producing monopoly in so far as the prohibition would obstruct the performance, in law or in fact, of the particular tasks assigned to that undertaking.

Compliance with legal requirementsE+W+S+N.I.

5(1)The Chapter I prohibition does not apply to an agreement to the extent to which it is made in order to comply with a legal requirement.E+W+S+N.I.

(2)The Chapter II prohibition does not apply to conduct to the extent to which it is engaged in an order to comply with a legal requirement.

(3)In this paragraph “legal requirement” means a requirement—

(a)imposed by or under any enactment in force in the United Kingdom;

(b)imposed by or under the Treaty or the EEA Agreement and having legal effect in the United Kingdom without further enactment; or

(c)imposed by or under the law in force in another Member State and having legal effect in the United Kingdom.

Avoidance of conflict with international obligationsE+W+S+N.I.

6(1)If the Secretary of State is satisfied that, in order to avoid a conflict between provisions of this Part and an international obligation of the United Kingdom, it would be appropriate for the Chapter I prohibition not to apply to—E+W+S+N.I.

(a)a particular agreement, or

(b)any agreement of a particular description,

he may by order exclude the agreement, or agreements of that description, from the Chapter I prohibition.

(2)An order under sub-paragraph (1) may make provision for the exclusion of the agreement or agreements to which the order applies, or of such of them as may be specified, only in specified circumstances.

(3)An order under sub-paragraph (1) may also provide that the Chapter I prohibition is to be deemed never to have applied in relation to the agreement or agreements, or in relation to such of them as may be specified.

(4)If the Secretary of State is satisfied that, in order to avoid a conflict between provisions of this Part and an international obligation of the United Kingdom, it would be appropriate for the Chapter II prohibition not to apply in particular circumstances, he may by order provide for it not to apply in such circumstances as may be specified.

(5)An order under sub-paragraph (4) may provide that the Chapter II prohibition is to be deemed never to have applied in relation to specified conduct.

(6)An international arrangement relating to civil aviation and designated by an order made by the Secretary of State is to be treated as an international obligation for the purposes of this paragraph.

(7)In this paragraph and paragraph 7 “specified” means specified in the order.

Public policyE+W+S+N.I.

7(1)If the Secretary of State is satisfied that there are exceptional and compelling reasons of public policy why the Chapter I prohibition ought not to apply to—E+W+S+N.I.

(a)a particular agreement, or

(b)any agreement of a particular description,

he may by order exclude the agreement, or agreements of that description, from the Chapter I prohibition.

(2)An order under sub-paragraph (1) may make provision for the exclusion of the agreement or agreements to which the order applies, or of such of them as may be specified, only in specified circumstances.

(3)An order under sub-paragraph (1) may also provide that the Chapter I prohibition is to be deemed never to have applied in relation to the agreement or agreements, or in relation to such of them as may be specified.

(4)If the Secretary of State is satisfied that there are exceptional and compelling reasons of public policy why the Chapter II prohibition ought not to apply in particular circumstances, he may by order provide for it not to apply in such circumstances as may be specified.

(5)An order under sub-paragraph (4) may provide that the Chapter II prohibition is to be deemed never to have applied in relation to specified conduct.

Coal and steelE+W+S+N.I.

8(1)The Chapter I prohibition does not apply to an agreement which relates to a coal or steel product to the extent to which the ECSC Treaty gives the Commission exclusive jurisdiction in the matter.E+W+S+N.I.

(2)Sub-paragraph (1) ceases to have effect on the date on which the ECSC Treaty expires (“the expiry date”).

(3)The Chapter II prohibition does not apply to conduct which relates to a coal or steel product to the extent to which the ECSC Treaty gives the Commission exclusive jurisdiction in the matter.

(4)Sub-paragraph (3) ceases to have effect on the expiry date.

(5)In this paragraph—

  • coal or steel product” means any product of a kind listed in Annex I to the ECSC Treaty; and

  • ECSC Treaty” means the Treaty establishing the European Coal and Steel Community.

Agricultural productsE+W+S+N.I.

9(1)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—E+W+S+N.I.

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

(b)is necessary for the attainment of the objectives set out in Article 39 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.

(2)If the Commission determines that an agreement does not fulfil the conditions specified by the provision for agricultural products for exclusion from Article 85(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 agriculture exclusion does not apply to a particular agreement if the [F129OFT] gives a direction under this paragraph to that effect.

(4)If the [F129OFT] is considering whether to give a direction under this paragraph, [F130it] may by notice in writing require any party to the agreement in question to give [F131the OFT] such information in connection with the agreement as [F130it] may require.

(5)The [F129OFT] 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 [F129OFT] may give a direction under this paragraph.

(7)The [F129OFT] may also give a direction under this paragraph if [F131it] considers that an agreement (whether or not [F131it] 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)In this paragraph—

  • agricultural product” means any product of a kind listed in Annex II 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.

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Amendments (Textual)

F129Words in Sch. 3 para. 9 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(51)(b)(i); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F130Words 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.)

F131Words 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.)

Section 3(1)(d).

F132SCHEDULE 4E+W+S+N.I. Professional Rules

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F132Sch. 4 repealed (1.4.2003) by Enterprise Act 2002 (c. 40), ss. 207, 279, Sch. 26 (with Sch. 24 paras. 2022); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

Section 12(2).

SCHEDULE 5E+W+S+N.I. Notification under Chapter I: Procedure

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Modifications etc. (not altering text)

C30Sch. 5 applied (with modifications) (1.3.2000) by S.I. 2000/263, art. 8

Commencement Information

I9Sch. 5 partly in force; Sch. 5 not in force at Royal Assent, see s. 431; Sch. 5 partly in force at 1.3.2000 by S.I. 2000/344, art. 2, Sch.

Terms usedE+W+S+N.I.

1In this Schedule—

  • applicant” means the person making an application to which this Schedule applies;

  • application” means an application under section 13 or an application under section 14;

  • application for guidance” means an application under section 13;

  • application for a decision” means an application under section 14;

  • rules” means rules made by the [F133OFT] under section 51; and

  • specified” means specified in the rules.

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Amendments (Textual)

F133Words in Sch. 5 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(52)(a); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

General rules about applicationsE+W+S+N.I.

2(1)An application must be made in accordance with rules.E+W+S+N.I.

(2)A party to an agreement who makes an application must take all reasonable steps to notify all other parties to the agreement of whom he is aware—

(a)that the application has been made; and

(b)as to whether it is for guidance or a decision.

(3)Notification under sub-paragraph (2) must be in the specified manner.

Preliminary investigationE+W+S+N.I.

3(1)If, after a preliminary investigation of an application, the [F133OFT] considers that it is likely—E+W+S+N.I.

(a)that the agreement concerned will infringe the Chapter I prohibition, and

(b)that it would not be appropriate to grant the agreement an individual exemption,

[F134it] may make a decision (“a provisional decision”) under this paragraph.

(2)If the [F133OFT] makes a provisional decision—

(a)the [F133OFT] must notify the applicant in writing of [F134its] provisional decision; and

(b)section 13(4) or (as the case may be) section 14(4) is to be taken as never having applied.

(3)When making a provisional decision, the [F133OFT] must follow such procedure as may be specified.

(4)A provisional decision does not affect the final determination of an application.

(5)If the [F133OFT] has given notice to the applicant under sub-paragraph (2) in respect of an application for a decision, he may continue with the application under section 14.

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Amendments (Textual)

F133Words in Sch. 5 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(52)(a); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F134Words in Sch. 5 para. 3 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(52)(b); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

Procedure on application for guidanceE+W+S+N.I.

4When determining an application for guidance, the [F133OFT] must follow such procedure as may be specified.

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Amendments (Textual)

F133Words in Sch. 5 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(52)(a); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

Procedure on application for a decisionE+W+S+N.I.

5(1)When determining an application for a decision, the [F133OFT] must follow such procedure as may be specified.E+W+S+N.I.

(2)The [F133OFT] must arrange for the application to be published in such a way as [F135it thinks] most suitable for [F136bringing the application] to the attention of those likely to be affected by it, unless [F137the OFT is] satisfied that it will be sufficient F138... to seek information from one or more particular persons other than the applicant.

(3)In determining the application, the [F133OFT] must take into account any representations made to [F139it] by persons other than the applicant.

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Amendments (Textual)

F133Words in Sch. 5 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(52)(a); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F135Words in Sch. 5 para. 5(2) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(52)(c)(i); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F136Words in Sch. 5 para. 5(2) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(52)(c)(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.)

F137Words in Sch. 5 para. 5(2) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(52)(c)(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.)

F138Words in Sch. 5 para. 5(2) repealed (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(52)(c)(iv), Sch. 26; S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F139Word in Sch. 5 para. 5(3) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(52)(d); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

Publication of decisionsE+W+S+N.I.

6If the [F133OFT] determines an application for a decision [F140it] must publish [F140its] decision, together with [F140its] reasons for making it, in such manner as may be specified.

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Amendments (Textual)

F133Words in Sch. 5 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(52)(a); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F140Words in Sch. 5 para. 6 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(52)(e); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

Prospective

Delay by the [F133OFT] E+W+S+N.I.

7(1)This paragraph applies if the court is satisfied, on the application of a person aggrieved by the failure of the [F133OFT] to determine an application for a decision in accordance with the specified procedure, that there has been undue delay on the part of the [F133OFT] in determining the application.E+W+S+N.I.

(2)The court may give such directions to the [F133OFT] as it considers appropriate for securing that the application is determined without unnecessary further delay.

Section 20(2).

SCHEDULE 6E+W+S+N.I. Notification under Chapter II: Procedure

Terms usedE+W+S+N.I.

1In this Schedule—

  • applicant” means the person making an application to which this Schedule applies;

  • application” means an application under section 21 or an application under section 22;

  • application for guidance” means an application under section 21;

  • application for a decision” means an application under section 22;

  • other party”, in relation to conduct of two or more persons, means one of those persons other than the applicant;

  • rules” means rules made by the [F141OFT] under section 51; and

  • specified” means specified in the rules.

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Amendments (Textual)

F141Words in Sch. 6 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(53)(a); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

General rules about applicationsE+W+S+N.I.

2(1)An application must be made in accordance with rules.E+W+S+N.I.

(2)If the conduct to which an application relates is conduct of two or more persons, the applicant must take all reasonable steps to notify all of the other parties of whom he is aware—

(a)that the application has been made; and

(b)as to whether it is for guidance or a decision.

(3)Notification under sub-paragraph (2) must be in the specified manner.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

C31Sch. 6 paras. 2-2C amended (1.3.2000) by S.I. 2000/947, art. 6

Preliminary investigationE+W+S+N.I.

3(1)If, after a preliminary investigation of an application, the [F141OFT] considers that it is likely that the conduct concerned will infringe the Chapter II prohibition, [F142it] may make a decision (“a provisional decision”) under this paragraph.E+W+S+N.I.

(2)If the [F141OFT] makes a provisional decision, [F142it] must notify the applicant in writing of that decision.

(3)When making a provisional decision, the [F141OFT] must follow such procedure as may be specified.

(4)A provisional decision does not affect the final determination of an application.

(5)If the [F141OFT] has given notice to the applicant under sub-paragraph (2) in respect of an application for a decision, he may continue with the application under section 22.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F141Words in Sch. 6 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(53)(a); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F142Word in Sch. 6 para. 3(1)(2) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(53)(b); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

Procedure on application for guidanceE+W+S+N.I.

4When determining an application for guidance, the [F141OFT] must follow such procedure as may be specified.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F141Words in Sch. 6 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(53)(a); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

Procedure on application for a decisionE+W+S+N.I.

5(1)When determining an application for a decision, the [F141OFT] must follow such procedure as may be specified.E+W+S+N.I.

(2)The [F141OFT] must arrange for the application to be published in such a way as [F143it thinks] most suitable for [F144bringing the application] to the attention of those likely to be affected by it, unless [F145the OFT is] satisfied that it will be sufficient F146... to seek information from one or more particular persons other than the applicant.

(3)In determining the application, the [F141OFT] must take into account any representations made to [F147it] by persons other than the applicant.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F141Words in Sch. 6 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(53)(a); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F143Words in Sch. 6 para. 5(2) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(53)(c)(i); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F144Words in Sch. 6 para. 5(2) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(53)(c)(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.)

F145Words in Sch. 6 para. 5(2) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(53)(c)(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.)

F146Words in Sch. 6 para. 5(2) repealed (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(53)(c)(iv), Sch. 26; S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F147Word in Sch. 6 para. 5(3) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(53)(d); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

Publication of decisionsE+W+S+N.I.

6If the [F141OFT] determines an application for a decision [F148it] must publish [F148its] decision, together with [F148its] reasons for making it, in such manner as may be specified.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F141Words in Sch. 6 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(53)(a); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F148Words in Sch. 6 para. 6 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(53)(e); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

Prospective

Delay by the [F141OFT] E+W+S+N.I.

7(1)This paragraph applies if the court is satisfied, on the application of a person aggrieved by the failure of the [F141OFT] to determine an application for a decision in accordance with the specified procedure, that there has been undue delay on the part of the [F141OFT] in determining the application.E+W+S+N.I.

(2)The court may give such directions to the [F141OFT] as it considers appropriate for securing that the application is determined without unnecessary further delay.

Section 45(7).

SCHEDULE 7E+W+S+N.I. The Competition Commission

Part IE+W+S+N.I. General

InterpretationE+W+S+N.I.

1In this Schedule—

  • the 1973 Act” means the M20Fair Trading Act 1973;

  • F149...

  • Chairman” means the chairman of the Commission;

  • the Commission” means the Competition Commission;

  • Council” has the meaning given in paragraph 5;

  • general functions” means any functions of the Commission other than functions—

    (a)

    F150...

    (b)

    which are to be discharged by the Council;

  • member” means a member of the Commission;

  • newspaper merger reference” means a newspaper merger reference under section 59 of the 1973 Act;

  • [F151newspaper panel member” means a member of the panel maintained under paragraph 22;]

  • F149...

  • reporting panel member” means a member appointed under paragraph 2(1)(b);

  • secretary” means the secretary of the Commission appointed under paragraph 9; and

  • specialist panel member” means a member appointed under any of the provisions mentioned in paragraph 2(1)(d).

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)