C18C19C20C27C34C32C33C30C29C31C35C40C41C43C44C45C48C47 Part I Competition
Pt. 1 (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. 1
Pt. 1 (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. 1
Pt. 1 (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. 1
Pt. 1 modified (25.7.2003 for specified purposes, 29.12.2003 in so far as not already in force) by Communications Act 2003 (c. 21), ss. 371(3), 411(2) (with Sch. 18); S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)); S.I. 2003/3142, art. 3(2) (with art. 11)
Pt. 1 certain functions made exercisable concurrently by 1998 c. 41, s. 67(3) (as substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 2 para. 6(2)(a))
Pt. 1 certain functions made exercisable concurrently by 1991 c. 56, s. 31(3) (as substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 2 para. 4(2)(a))
Pt. 1 certain functions made exercisable concurrently by S.I. 1992/231 (N.I. 1) art. 46(3) (as substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 2 para. 5(2)(a))
Pt. 1 certain functions made exercisable concurrently by 1986 c. 44, s. 36A(3) (as substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 2 para. 1(2)(a))
Pt. 1 restricted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), regs. 1(a), 9(2)
Pt. 1 certain functions made exercisable concurrently by 1989 c. 29, s. 43(3) (as substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 2 para. 3(2)(a))
Pt. 1 certain functions made exercisable concurrently by S.I. 1996/275 (N.I. 2), art. 23(3) (as substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 2 para. 9(2)(a))
Pt. 1 certain functions made exercisable concurrently (1.4.2007) by The Water and Sewerage Services (Northern Ireland) Order 2006 (S.I. 2006/3336), arts. 1(2), 29(3) (with arts. 8(8), 121(3), 307); S.R. 2007/194, art. 2(2), Sch. Pt. 2 (with Sch. 2)
Pt. 1 modified (1.4.2007) by The Water and Sewerage Services (Northern Ireland) Order 2006 (S.I. 2006/3336), arts. 1(2), 29(5) (with arts. 8(8), 121(3), 307); S.R. 2007/194, art. 2(2), Sch. Pt. 2 (with Sch. 2)
Pt. 1 modified (1.4.2013) by Health and Social Care Act 2012 (c. 7), ss. 72(3), 306(4); S.I. 2013/160, art. 2(2) (with arts. 7-9)
Pt. 1 functions made exercisable concurrently (6.4.2013) by Civil Aviation Act 2012 (c. 19), ss. 62(1)-(3), 110(1) (with s. 77(1)-(3), Sch. 10 paras. 12, 17); S.I. 2013/589, art. 2(1)-(3)
Pt. 1 modified in part (6.4.2013) by Civil Aviation Act 2012 (c. 19), ss. 62(4), 110(1) (with ss. 62(5), 77(1)-(3), Sch. 10 paras. 12, 17); S.I. 2013/589, art. 2(1)-(3)
Pt. 1 certain functions made exercisable concurrently by 2000 c. 8, s. 234J (as inserted (1.11.2014 for specified purposes, 1.4.2015 so far as not already in force) by Financial Services (Banking Reform) Act 2013 (c. 33), s. 148(5), Sch. 8 para. 3; S.I. 2014/2458, arts. 2(b)(aa)(i), 3(b)(v))
Pt. 1 certain functions made exercisable concurrently (1.11.2014 for specified purposes, 1.4.2015 so far as not already in force) by Financial Services (Banking Reform) Act 2013 (c. 33), ss. 61(2), 148(5); S.I. 2014/2458, arts. 2(a)(i), 3(b)(ii)
Chapter I Agreements
Introduction
I11 Enactments replaced.
The following shall cease to have effect—
I9a
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).
The prohibition
2 Agreements etc. preventing, restricting or distorting competition.
C1C421
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.
C285
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”.
Excluded agreements
I23 Excluded agreements.
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). F68...
F1d
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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
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.
Exemptions
4 Individual exemptions.
F811
The F2OFT 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 F2it 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 F2OFT considers it appropriate to impose; and
b
has effect for such period as the F2OFT 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
5 Cancellation etc. of individual exemptions.
F821
If the F3OFT has reasonable grounds for believing that there has been a material change of circumstance since F3it granted an individual exemption, F3it 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
3
Breach of a condition has the effect of cancelling the exemption.
4
Failure to comply with an obligation allows the F3OFT, by notice in writing, to take any of the steps mentioned in subsection (1).
5
Any step taken by the F3OFT 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
6 Block exemptions.
1
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 F255CMA may, by notice in writing, cancel the block exemption in respect of the agreement;
7
A block exemption order may provide that the order is to cease to have effect at the end of a specified period.
F858
In this section—
“exempt agreement” means an agreement which is exempt from the Chapter I prohibition as a result of section 9; and
“specified” means specified in a block exemption order.
7 Block exemptions: opposition.
F861
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 F5OFT 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 F5OFT—
a
is opposed to its being so treated; and
b
gives notice in writing to the party concerned of F5its opposition before the end of that period.
3
4
In this section “notice period” means such period as may be specified with a view to giving the F5OFT sufficient time to consider whether to oppose under subsection (2).
8 Block exemptions: procedure.
1
Before making a recommendation under section 6(1), the F256CMA must—
a
b
consider any representations about it which are made to F6it.
2
3
4
Subsection (1) also applies to any proposed recommendation under subsection (3).
5
Before exercising F6its 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 F257CMA of the proposed variation or revocation; and
b
take into account any comments made by the F257CMA .
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.
9F89Exempt agreements.
F871
F90An agreement is exempt from the Chapter I prohibition if it—
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; F91and
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.
F882
In any proceedings in which it is alleged that the Chapter I prohibition is being or has been infringed by an agreement, any undertaking or association of undertakings claiming the benefit of subsection (1) shall bear the burden of proving that the conditions of that subsection are satisfied.
10 Parallel exemptions.
1
An agreement is exempt from the Chapter I prohibition if it is exempt from F211the European Union prohibition—
a
by virtue of a Regulation, F93or
b
because of a decision of the Commission under Article 10 of the EC Competition Regulation.
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 F211the European Union 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 F211the European Union 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 F211the European Union 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 F258CMA 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 F259CMA has the effect of cancelling the exemption.
8
9
For the purpose of this section references to an agreement being exempt from F211the European Union prohibition are to be read as including references to the prohibition being inapplicable to the agreement by virtue of a Regulation F92other than the EC Competition Regulation or a decision by the Commission.
10
In this section—
“F211the European Union prohibition” means the prohibition contained in—
- a
F212Article 101(1)
- 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
- a
“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 F211the European Union prohibition (and the Commission) subject to any modifications which the Secretary of State may by order prescribe.
11 Exemption for certain other agreements.
1
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.
Notification
I312 Requests for F9OFT
to examine agreements.
F791
Sections 13 and 14 provide for an agreement to be examined by the F9OFT 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 F9OFT, 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 F9OFT—
a
has given a direction withdrawing an exclusion; or
b
is considering whether to give such a direction.
C213 Notification for guidance.
F791
A party to an agreement who applies for the agreement to be examined under this section must—
a
notify the F10OFT of the agreement; and
b
apply to F10the OFT for guidance.
2
3
If the F10OFT considers that the agreement is likely to infringe the prohibition if it is not exempt, F10its 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 F10it 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 F10OFT 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 F10OFT 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.
C314Notification for a decision.
F791
A party to an agreement who applies for the agreement to be examined under this section must—
a
notify the F11OFT of the agreement; and
b
apply to F11the OFT for a decision.
2
On an application under this section, the F11OFT 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 F11OFT 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 F11OFT 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 F11OFT 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.
C415 Effect of guidance.
F791
This section applies to an agreement if the F12OFT 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
F12it would be likely to grant the agreement an individual exemption if asked to do so.
2
The F12OFT is to take no further action under this Part with respect to an agreement to which this section applies, unless—
a
b
c
one of the parties to the agreement applies to F12it for a decision under section 14 with respect to the agreement; or
d
a complaint about the agreement has been made to F12it 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 F12OFT may remove the immunity given by subsection (3) if—
a
F12it takes action under this Part with respect to the agreement in one of the circumstances mentioned in subsection (2);
b
F12it considers it likely that the agreement will infringe the prohibition; and
5
If the F12OFT has a reasonable suspicion that information—
b
which was provided to F12it 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.
C516 Effect of a decision that the Chapter I prohibition has not been infringed.
F791
This section applies to an agreement if the F13OFT has determined an application under section 14 by making a decision that the agreement has not infringed the Chapter I prohibition.
2
The F13OFT is to take no further action under this Part with respect to the agreement unless—
a
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 F13OFT may remove the immunity given by subsection (3) if—
a
F13it takes action under this Part with respect to the agreement in one of the circumstances mentioned in subsection (2);
b
F13it considers that it is likely that the agreement will infringe the prohibition; and
5
If the F13OFT has a reasonable suspicion that information—
b
which was provided to F13it 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.
Chapter II Abuse of Dominant Position
Introduction
17 Enactments replaced.
Sections 2 to 10 of the M2Competition Act 1980 (control of anti-competitive practices) shall cease to have effect.
The prohibition
18 Abuse of dominant position.
C61
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”.
Excluded cases
19 Excluded cases.
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.
Notification
20 Requests for F14OFT to consider conduct.
F801
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 F14OFT 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 F14OFT, in considering an application.
21 Notification for guidance.
F801
A person who applies for conduct to be considered under this section must—
a
notify the F15OFT of it; and
b
apply to F15the OFT for guidance.
2
22 Notification for a decision.
F801
A person who applies for conduct to be considered under this section must—
a
notify the F16OFT of it; 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 II prohibition has been infringed; and
b
if it has not been infringed, whether that is because of the effect of an exclusion.
23 Effect of guidance.
F801
This section applies to conduct if the F17OFT has determined an application under section 21 by giving guidance that the conduct is unlikely to infringe the Chapter II prohibition.
2
The F17OFT is to take no further action under this Part with respect to the conduct to which this section applies, unless—
a
b
c
a complaint about the conduct has been made to F17it.
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 F17OFT may remove the immunity given by subsection (3) if—
a
F17it
takes action under this Part with respect to the conduct in one of the circumstances mentioned in subsection (2);
b
F17it
considers that it is likely that the conduct will infringe the prohibition; and
5
If the F17OFT has a reasonable suspicion that information—
b
which was provided to F17it 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.
24 Effect of a decision that the Chapter II prohibition has not been infringed.
F801
This section applies to conduct if the F18OFT has determined an application under section 22 by making a decision that the conduct has not infringed the Chapter II prohibition.
2
The F18OFT is to take no further action under this Part with respect to the conduct unless—
a
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 F18OFT may remove the immunity given by subsection (3) if—
a
F18it takes action under this Part with respect to the conduct in one of the circumstances mentioned in subsection (2);
b
F18it considers that it is likely that the conduct will infringe the prohibition; and
5
If the F18OFT has a reasonable suspicion that information—
b
which was provided to F18it 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.
Chapter III Investigation and Enforcement
Investigations
25F94Power of F246CMA to investigate
1
In any of the following cases, the F261CMA may conduct an investigation.
2
The first case is where there are reasonable grounds for suspecting that there is an agreement which—
a
may affect trade within the United Kingdom; and
b
has as its object or effect the prevention, restriction or distortion of competition within the United Kingdom.
3
The second case is where there are reasonable grounds for suspecting that there is an agreement which—
a
may affect trade between Member States; and
b
has as its object or effect the prevention, restriction or distortion of competition within F211the European Union.
4
The third case is where there are reasonable grounds for suspecting that the Chapter II prohibition has been infringed.
5
The fourth case is where there are reasonable grounds for suspecting that the prohibition in F214Article 102 has been infringed.
6
The fifth case is where there are reasonable grounds for suspecting that, at some time in the past, there was an agreement which at that time—
a
may have affected trade within the United Kingdom; and
b
had as its object or effect the prevention, restriction or distortion of competition within the United Kingdom.
7
The sixth case is where there are reasonable grounds for suspecting that, at some time in the past, there was an agreement which at that time—
a
may have affected trade between Member States; and
b
had as its object or effect the prevention, restriction or distortion of competition within F211the European Union.
8
Subsection (2) does not permit an investigation to be conducted in relation to an agreement if the F262CMA —
a
considers that the agreement is exempt from the Chapter I prohibition as a result of a block exemption or a parallel exemption; and
b
does not have reasonable grounds for suspecting that the circumstances may be such that it could exercise its power to cancel the exemption.
9
Subsection (3) does not permit an investigation to be conducted if the F262CMA —
a
considers that the agreement is an agreement to which the prohibition in F215Article 101(1) is inapplicable by virtue of a regulation of the Commission (“the relevant regulation”); and
b
does not have reasonable grounds for suspecting that the conditions set out in Article 29(2) of the EC Competition Regulation for the withdrawal of the benefit of the relevant regulation may be satisfied in respect of that agreement.
10
Subsection (6) does not permit an investigation to be conducted in relation to any agreement if the F262CMA considers that, at the time in question, the agreement was exempt from the Chapter I prohibition as a result of a block exemption or a parallel exemption.
11
12
It is immaterial for the purposes of subsection (6) or (7) whether the agreement in question remains in existence.
25AF253Power of CMA to publish notice of investigation
1
Where the CMA decides to conduct an investigation it may publish a notice which may, in particular—
a
state its decision to do so;
b
indicate which of subsections (2) to (7) of section 25 the investigation falls under;
c
summarise the matter being investigated;
d
identify any undertaking whose activities are being investigated as part of the investigation;
e
identify the market which is or was affected by the matter being investigated.
2
Section 57 does not apply to a notice under subsection (1) to the extent that it includes information other than information mentioned in that subsection.
3
Subsection (4) applies if—
a
the CMA has published a notice under subsection (1) which identifies an undertaking whose activities are being investigated, and
b
the CMA subsequently decides (without making a decision within the meaning given by section 31(2)) to terminate the investigation of the activities of the undertaking so identified.
4
The CMA must publish a notice stating that the activities of the undertaking in question are no longer being investigated.
C7C23C3726F247Investigations: powers to require documents and information
1
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 F26543 and 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 F264CMA 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.
26AF254Investigations: power to ask questions
1
For the purposes of an investigation, the CMA may give notice to an individual who has a connection with a relevant undertaking requiring the individual to answer questions with respect to any matter relevant to the investigation—
a
at a place specified in the notice, and
b
either at a time so specified or on receipt of the notice.
2
The CMA must give a copy of the notice under subsection (1) to each relevant undertaking with which the individual has a current connection at the time the notice is given to the individual.
3
The CMA must take such steps as are reasonable in all the circumstances to comply with the requirement under subsection (2) before the time at which the individual is required to answer questions.
4
Where the CMA does not comply with the requirement under subsection (2) before the time mentioned in subsection (3), it must comply with that requirement as soon as practicable after that time.
5
A notice under subsection (1) must be in writing and must indicate—
a
the subject matter and purpose of the investigation, and
b
the nature of the offence created by section 44.
6
For the purposes of this section—
a
an individual has a connection with an undertaking if he or she is or was—
i
concerned in the management or control of the undertaking, or
ii
employed by, or otherwise working for, the undertaking, and
b
an individual has a current connection with an undertaking if, at the time in question, he or she is so concerned, is so employed or is so otherwise working.
7
In this section, a “relevant undertaking” means an undertaking whose activities are being investigated as part of the investigation in question.
C8C23C3727F97Power to enter business premises without a warrant
1
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 F267CMA has a reasonable suspicion that the premises are, or have been, occupied by—
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 F21stored 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 F22or from which it can readily be produced in a visible and legible form.
F102f
take any steps which appear to be necessary for the purpose of preserving or preventing interference with any document which he considers relates to any matter relevant to the investigation.
F966
In this section “business premises” means premises (or any part of premises) not used as a dwelling.
C9C23C3728F104Power to enter business premises under a warrant.
1
F268On an application made to it by the CMA, the court or the Tribunal may issue a warrant if it is satisfied that—
a
there are reasonable grounds for suspecting that there are on F105any business 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
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.
C10C362
A warrant under this section shall authorise a named officer of the F272CMA , and any other of F23the F273“CMA's officers whom the F272CMA 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;
C11C22f
to require any information which is F24stored 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 F25or 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), F269the court or (as the case may be) the Tribunal 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.
F603A
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.
C12C217
Any document of which possession is taken under subsection (2)(c) may be retained for a period of three months.
F2707A
An application for a warrant under this section must be made—
a
in the case of an application to the court, in accordance with rules of court;
b
in the case of an application to the Tribunal, in accordance with Tribunal rules.
F1038
In this section “business premises” has the same meaning as in section 27.
C3728AF71Power to enter domestic premises under a warrant
1
F274On an application made to it by the CMA, the court or the Tribunal may issue a warrant if it is satisfied that—
a
there are reasonable grounds for suspecting that there are on any domestic premises documents—
i
the production of which has been required under section 26; and
ii
which have not been produced as required; or
b
there are reasonable grounds for suspecting that—
i
there are on any domestic premises documents which the F277CMA 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.
2
A warrant under this section shall authorise a named officer of the F277CMA , and any other of its officers whom the F277CMA 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 stored 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 or 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), F275the court or (as the case may be) the Tribunal 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.
4
A warrant under this section may authorise persons specified in the warrant to accompany the named officer who is executing it.
5
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.
6
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.
7
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.
8
Any document of which possession is taken under subsection (2)(c) may be retained for a period of three months.
F2768A
An application for a warrant under this section must be made—
a
in the case of an application to the court, in accordance with rules of court;
b
in the case of an application to the Tribunal, in accordance with Tribunal rules.
9
In this section, “domestic premises” means premises (or any part of premises) that are used as a dwelling and are—
a
premises also used in connection with the affairs of an undertaking or association of undertakings; or
b
premises where documents relating to the affairs of an undertaking or association of undertakings are kept.
C13C23C3729 Entry of premises under warrant: supplementary.
1
A warrant issued under section 28 F107or 28A 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 F108or 28A 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.
C14C23C3730 Privileged communications.
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.
30AF56Use of statements in prosecution
F2781
A statement made by a person in response to a requirement imposed by virtue of any of sections F27926 and 27 to 28A 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.
F2802
A statement by an individual in response to a requirement imposed by virtue of section 26A (a “section 26A statement”) may only be used in evidence against the individual—
a
on a prosecution for an offence under section 44, or
b
on a prosecution for some other offence in a case falling within subsection (3).
3
A prosecution falls within this subsection if, in the proceedings—
a
in giving evidence, the individual makes a statement inconsistent with the section 26A statement, and
b
evidence relating to the section 26A statement is adduced, or a question relating to it is asked, by or on behalf of the individual.
4
A section 26A statement may not be used in evidence against an undertaking with which the individual who gave the statement has a connection on a prosecution for an offence unless the prosecution is for an offence under section 44.
5
For the purposes of subsection (4), an individual has a connection with an undertaking if he or she is or was—
a
concerned in the management or control of the undertaking, or
b
employed by, or otherwise working for, the undertaking.
F10931 Decisions following an investigation.
1
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.
F1092
For the purposes of this section and sections 31A and 31B “decision” means a decision of the F281CMA —
a
that the Chapter I prohibition has been infringed;
b
that the Chapter II prohibition has been infringed;
c
that the prohibition in F217Article 101(1) has been infringed; or
d
that the prohibition in F218Article 102 has been infringed.
31AF72Commitments
1
Subsection (2) applies in a case where the F282CMA has begun an investigation under section 25 but has not made a decision (within the meaning given by section 31(2)).
2
For the purposes of addressing the competition concerns it has identified, the F282CMA may accept from such person (or persons) concerned as it considers appropriate commitments to take such action (or refrain from taking such action) as it considers appropriate.
3
At any time when commitments are in force the F282CMA may accept from the person (or persons) who gave the commitments—
a
a variation of them if it is satisfied that the commitments as varied will address its current competition concerns;
b
commitments in substitution for them if it is satisfied that the new commitments will address its current competition concerns.
4
Commitments under this section—
a
shall come into force when accepted; and
b
may be released by the F282CMA where—
i
it is requested to do so by the person (or persons) who gave the commitments; or
ii
it has reasonable grounds for believing that the competition concerns referred to in subsection (2) or (3) no longer arise.
5
The provisions of Schedule 6A to this Act shall have effect with respect to procedural requirements for the acceptance, variation and release of commitments under this section.
31BF72Effect of commitments under section 31A
1
Subsection (2) applies if the F283CMA has accepted commitments under section 31A (and has not released them).
2
In such a case, the F283CMA shall not—
a
continue the investigation,
b
make a decision (within the meaning of section 31(2)), or
c
give a direction under section 35,
in relation to the agreement or conduct which was the subject of the investigation (but this subsection is subject to subsections (3) and (4)).
3
Nothing in subsection (2) prevents the F283CMA from taking any action in relation to competition concerns which are not addressed by commitments accepted by it.
4
Subsection (2) also does not prevent the F283CMA from continuing the investigation, making a decision, or giving a direction where—
a
it has reasonable grounds for believing that there has been a material change of circumstances since the commitments were accepted;
b
it has reasonable grounds for suspecting that a person has failed to adhere to one or more of the terms of the commitments; or
c
it has reasonable grounds for suspecting that information which led it to accept the commitments was incomplete, false or misleading in a material particular.
5
If, pursuant to subsection (4), the F283CMA makes a decision or gives a direction the commitments are to be treated as released from the date of that decision or direction.
31CF72Review of commitments
1
Where the F284CMA is reviewing or has reviewed the effectiveness of commitments accepted under section 31A it must, if requested to do so by the Secretary of State, prepare a report of its findings.
2
The F284CMA must—
a
give any report prepared by it under subsection (1) to the Secretary of State; and
b
publish the report.
31DF72Guidance
1
The F285CMA must prepare and publish guidance as to the circumstances in which it may be appropriate to accept commitments under section 31A.
2
The F285CMA may at any time alter the guidance.
3
If the guidance is altered, the F285CMA 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 F286CMA may, after consulting the Secretary of State, choose how it publishes its guidance.
6
If the F286CMA is preparing or altering guidance under this section it must consult such persons as it 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 exercising its discretion to accept commitments under section 31A, the F287CMA must have regard to the guidance for the time being in force under this section.
31EF72Enforcement of commitments
1
If a person from whom the F288CMA has accepted commitments fails without reasonable excuse to adhere to the commitments (and has not been released from them), the F288CMA 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 commitments relate 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 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”.
31FF241Power for Secretary of State to impose time-limits on investigations etc.
1
The Secretary of State may by order impose time-limits in relation to—
a
the conduct by the CMA of investigations or investigations of a description specified in the order;
b
the making by the CMA of decisions (within the meaning given by section 31(2)) as a result of investigations or investigations of such a description.
2
Before making an order under subsection (1), the Secretary of State must consult the CMA and such other persons as the Secretary of State considers appropriate.
Enforcement
32 Directions in relation to agreements.
1
If the F289CMA has made a decision that an agreement infringes the Chapter I prohibition F110or that it infringes the prohibition inF219Article 101(1), F26it may give to such person or persons as F26it considers appropriate such directions as F26it considers appropriate to bring the infringement to an end.
2
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.
33 Directions in relation to conduct.
1
If the F290CMA has made a decision that conduct infringes the Chapter II prohibition F112or that it infringes the prohibition inF220Article 102, F28it may give to such person or persons as F28it considers appropriate such directions as F28it considers appropriate to bring the infringement to an end.
2
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.
34 Enforcement of directions.
1
If a person fails, without reasonable excuse, to comply with a direction under section 32 or 33, the F291CMA 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”.
35 Interim measures.
F1151
2
If the F292CMA considers that it is necessary for F30it to act under this section as a matter of urgency for the purpose—
a
of preventing F293significant damage to a particular person or category of person, or
b
of protecting the public interest,
3
Before giving a direction under this section, the F292CMA must—
a
give written notice to the person (or persons) to whom F30it proposes to give the direction; and
b
give that person (or each of them) an opportunity to make representations.
4
F1165
A direction given under this section may if the circumstances permit be replaced by—
a
a direction under section 32 or (as appropriate) section 33, or
b
commitments accepted under section 31A,
but, subject to that, has effect while this section applies.
6
In the F117cases mentioned in section 25(2), (3), (6) and (7), sections 32(3) and 34 also apply to directions given under this section.
7
In the F118cases mentioned in section 25(4) and (5), sections 33(3) and 34 also apply to directions given under this section.
F1148
In the case of an investigation conducted by virtue of section 25(2) or (6), this section does not apply if a person has produced evidence to the F294CMA in connection with the investigation that satisfies it on the balance of probabilities that, in the event of it reaching the basic infringement conclusion, it would also reach the conclusion that the suspected agreement is exempt from the Chapter I prohibition as a result of section 9(1); and in this subsection “the basic infringement conclusion” is the conclusion that there is an agreement which—
a
may affect trade within the United Kingdom, and
b
has as its object or effect the prevention, restriction or distortion of competition within the United Kingdom.
9
In the case of an investigation conducted by virtue of section 25(3) or (7), this section does not apply if a person has produced evidence to the F294CMA in connection with the investigation that satisfies it on the balance of probabilities that, in the event of it reaching the basic infringement conclusion, it would also reach the conclusion that the suspected agreement is an agreement to which the prohibition in F221Article 101(1) is inapplicable because the agreement satisfies the conditions in F221Article 101(3); and in this subsection “the basic infringement conclusion” is the conclusion that there is an agreement which—
a
may affect trade between Member States, and
b
has as its object or effect the prevention, restriction or distortion of competition withinF211the European Union.
36F119Penalties.
1
2
3
4
5
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.
F2977A
In fixing a penalty under this section the CMA must have regard to—
a
the seriousness of the infringement concerned, and
b
the desirability of deterring both the undertaking on whom the penalty is imposed and others from—
i
entering into agreements which infringe the Chapter 1 prohibition or the prohibition in Article 81(1), or
ii
engaging in conduct which infringes the Chapter 2 prohibition or the prohibition in Article 82.
8
No penalty fixed by the F296CMA 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 F296CMA under this section are to be paid into the Consolidated Fund.
37 Recovery of penalties.
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,
2
In this section—
“penalty notice” means a notice given under section 36; and
“specified date” means the date specified in the penalty notice.
I438 The appropriate level of a penalty.
1
F1241A
2
The F304CMA may at any time alter the guidance.
3
If the guidance is altered, the F304CMA must publish it as altered.
4
No guidance is to be published under this section without the approval of the Secretary of State.
5
6
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
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 F306CMA , F303the 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;
F207d
the Supreme Court.
39F125Limited immunity in relation to the Chapter I prohibition.
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
4
5
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 F308CMA 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.
40 Limited immunity in relation to the Chapter II prohibition.
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
4
5
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 F310CMA 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.
F240Civil sanctions
Ss. 40A, 40B and cross-heading inserted (25.4.2013 for specified purposes, 1.4.2014 in so far as not already in force) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 40(2), 103(1)(i)(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)
40APenalties: failure to comply with requirements
1
Where the CMA considers that a person has, without reasonable excuse, failed to comply with a requirement imposed on the person under section 26, 26A, 27, 28 or 28A, it may impose a penalty of such amount as it considers appropriate.
2
The amount may be—
a
a fixed amount,
b
an amount calculated by reference to a daily rate, or
c
a combination of a fixed amount and an amount calculated by reference to a daily rate.
3
A penalty imposed under subsection (1) must not—
a
in the case of a fixed amount, exceed such amount as the Secretary of State may by order specify;
b
in the case of an amount calculated by reference to a daily rate, exceed such amount per day as the Secretary of State may so specify;
c
in the case of a fixed amount and an amount calculated by reference to a daily rate, exceed such fixed amount and such amount per day as the Secretary of State may so specify.
4
The fixed amount specified for the purposes of subsection (3)(a) or (c) may not exceed £30,000.
5
The amount per day specified for the purposes of subsection (3)(b) or (c) may not exceed £15,000.
6
In imposing a penalty by reference to a daily rate—
a
no account is to be taken of any days before the service of the notice under section 112 of the Enterprise Act 2002 (as applied by subsection (9)) on the person concerned, and
b
unless the CMA determines an earlier date (whether before or after the penalty is imposed), the amount payable ceases to accumulate at the beginning of the earliest of the days mentioned in subsection (7).
7
The days are—
a
the day on which the requirement concerned is satisfied;
b
the day on which the CMA makes a decision (within the meaning given by section 31(2)) or terminates the investigation in question without making such a decision;
c
if the Secretary of State has made an order under section 31F(1)(b) imposing a time-limit on the making of such a decision, the latest day on which such a decision may be made as a result of the investigation in question.
8
Before making an order under subsection (3), the Secretary of State must consult the CMA and such other persons as the Secretary of State considers appropriate.
9
Sections 112 to 115 of the Enterprise Act 2002 (supplementary provisions about penalties) apply in relation to a penalty imposed under subsection (1) as they apply in relation to a penalty imposed under section 110(1) of that Act.
40BStatement of policy on penalties
1
The CMA must prepare and publish a statement of policy in relation to the use of its powers under section 40A.
2
The CMA must, in particular, include a statement about the considerations relevant to the determination of the nature and amount of any penalty imposed under section 40A.
3
The CMA may revise its statement of policy and, where it does so, it must publish the revised statement.
4
The CMA must consult such persons as it considers appropriate when preparing or revising its statement of policy.
5
If the proposed statement of policy or revision relates to a matter in respect of which a regulator exercises concurrent jurisdiction, those consulted must include that regulator.
6
In deciding whether and, if so, how to proceed under section 40A, the CMA must have regard to the statement of policy which was most recently published under this section at the time when the failure concerned occurred.
41 Agreements notified to the Commission.
F1281
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 F36OFT from investigating it under this Part.
5
In this section “provisional immunity from penalties” has such meaning as may be prescribed.
Offences
42 Offences.
F3111
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F3112
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F3113
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F3114
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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 F312... (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 F129section 28 or 28A 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.
1
A person is guilty of an offence if, having been required to produce a document under section 26, 27F130, 28 or 28A—
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.
C1544 False or misleading information.
1
If information is provided by a person to the F313CMA in connection with any function of the F313CMA 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,
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.
C34C32C33C30C29C31C35Chapter IVF248... Appeals
Words in Pt. 1 Ch. 4 heading omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 219 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)
F249...
S. 45 cross-heading omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 220 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)
F31445C46 The Competition Commission.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Appeals
C1646C34C32C33C30C29C31C35 Appealable decisions.
1
2
F1313
In this section “decision” means a decision of the F315CMA —
a
as to whether the Chapter I prohibition has been infringed,
b
as to whether the prohibition in F224Article 101(1) has been infringed,
c
as to whether the Chapter II prohibition has been infringed,
d
as to whether the prohibition in F225Article 102 has been infringed,
e
cancelling a block or parallel exemption,
f
withdrawing the benefit of a regulation of the Commission pursuant to Article 29(2) of the EC Competition Regulation,
g
not releasing commitments pursuant to a request made under section 31A(4)(b)(i),
h
releasing commitments under section 31A(4)(b)(ii),
i
as to the imposition of any penalty under section 36 or as to the amount of any such penalty,
and includes a direction under section 32, 33 or 35 and such other decisions under 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.
C1747F61Third party appeals
F1321
A person who does not fall within section 46(1) or (2) may appeal to the Tribunal with respect to—
a
a decision falling within paragraphs (a) to (f) of section 46(3);
b
a decision falling within paragraph (g) of section 46(3);
c
a decision of the F316CMA to accept or release commitments under section 31A, or to accept a variation of such commitments other than a variation which is not material in any respect;
d
a decision of the F316CMA to make directions under section 35;
e
a decision of the F316CMA not to make directions under section 35; or
f
such other decision of the F316CMA 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.
47AC34C32C33C30C29C31C35F57Monetary claims before Tribunal
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;
F226c
the prohibition in Article 101(1) of the Treaty;
F226d
the prohibition in Article 102 of the 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 F317CMA that the Chapter I prohibition or the Chapter II prohibition has been infringed;
F227b
a decision of the F317CMA that the prohibition in Article 101(1) or Article 102 of the Treaty has been infringed;
F227c
a decision of the Tribunal (on an appeal from a decision of the F317CMA ) that the Chapter I prohibition, the Chapter II prohibition or the prohibition in Article 101(1) or Article 102 of the Treaty has been infringed; or
F227d
a decision of the European Commission that the prohibition in Article 101(1) or Article 102 of the Treaty has been infringed.
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
b
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 49F204...;
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 F208Supreme Court 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.
47BC34C32C33C30C29C31C35F58Claims brought on behalf of consumers
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.
F3948C34C32C33C30C29C31C35 Appeal tribunals.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I549C34C32C33C30C29C31C35F199Further appeals
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.
C27Chapter V Miscellaneous
Vertical agreements and land agreements
50 Vertical agreements and land agreements.
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 F318CMA 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.
F250CMA's rules, guidance and fees
Word in s. 51 cross-heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 30 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)
51 Rules.
1
2
Schedule 9 makes further provision about rules made under this section but is not to be taken as restricting the F320CMA powers under this section.
3
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 F322CMA 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 F322CMA —
a
in the form in which it is submitted; or
b
subject to such modifications as he considers appropriate.
7
8
Subsections (5) to (7) apply also to any alteration of the rules made by the F322CMA .
9
The Secretary of State may, after consulting the F322CMA , by order vary or revoke any rules made under this section.
10
52 Advice and information.
1
F323The CMA 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.
F1331A
F324The CMA must prepare and publish general advice and information about—
a
the application of the prohibitions in F228Article 101(1) and Article 102; and
b
the enforcement by it of those prohibitions.
2
The F325CMA 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 F325CMA expects such provisions to operate.
4
5
6
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 F326CMA ;
b
the other regulators; and
c
such other persons as he considers appropriate.
53 Fees.
F1341
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 F46OFT 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 F46OFT 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 F46OFT under section 51; and
b
“specified” means specified in rules.
Regulators
I654C27 Regulators.
1
In this Part “regulator” means F47—
F69a
the Office of Communications;
b
the Gas and Electricity Markets Authority;
F327c
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
d
F201the Water Services Regulation Authority;
e
the F198Office of Rail Regulation;
f
F328the Northern Ireland Authority for Utility Regulation;
F238h
Monitor.
F379i
the Payment Systems Regulator established under section 40 of the Financial Services (Banking Reform) Act 2013.
F380j
the Financial Conduct Authority.
2
Parts II and III of Schedule 10 provide for functions of the F329CMA 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 F136any enactment (including any subordinate legislation) whenever passed or made.
C24C385
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 F330CMA 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.
C24C38F2456
Provision made by virtue of subsection (5)(c) may provide for questions to be referred to and determined by the Secretary of State F239, the CMA or by such other person as may F242—
a
prescribe circumstances in which the CMA may decide that, in a particular case, it is to exercise Part 1 functions in respect of the case rather than a regulator;
b
be prescribed.
F2436A
Where the regulations make provision as mentioned in subsection (6)(a), they must—
a
include provision requiring the CMA to consult the regulator concerned before making a decision that the CMA is to exercise Part 1 functions in respect of a particular case, and
b
provide that, in a case where a regulator has given notice under section 31(1) that it proposes to make a decision (within the meaning given by section 31(2)), the CMA may only decide that it is to exercise Part 1 functions in respect of the case rather than the regulator if the regulator consents.
F2446B
The Secretary of State may by regulations make provision requiring arrangements to be made for the sharing of information between competent persons in connection with concurrent cases.
F2446C
For the purposes of subsection (6B), “a concurrent case” is a case in respect of which—
a
the CMA considers that Part 1 functions are, or (but for provision made under subsection (5)(e)) would be, exercisable by both it and any regulator;
b
any regulator considers that Part 1 functions are, or (but for provision made under subsection (5)(e)) would be, exercisable by it.
C24C387
“Competent person” means the F331CMA or any of the regulators.
F1358
In this section, “subordinate legislation” has the same meaning as in section 21(1) of the Interpretation Act 1978 (c 30) and includes an instrument made under—
a
an Act of the Scottish Parliament;
b
Northern Ireland legislation.
Confidentiality and immunity from defamation
F62C2655 General restrictions on disclosure of information.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F6256 Director and Secretary of State to have regard to certain matters in relation to the disclosure of information.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
57 Defamation.
Findings of fact by F251CMA
Word in s. 58 cross-heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 35 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)
58 Findings of fact by F252CMA .
1
Unless the court directs otherwise F137or the F49OFT has decided to take further action in accordance with section 16(2) or 24(2), F333CMA'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 F50under 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 F51the Tribunal on such an appeal has confirmed the finding.
2
In this section—
F138“ F334a CMA's finding” means a finding of fact made by the F335CMA in the course of conducting an investigation;
F139“Part 1 proceedings” means proceedings brought otherwise than by the F335CMA —
- a
in respect of an alleged infringement of the Chapter I prohibition or of the Chapter II prohibition; or
- b
in respect of an alleged infringement of the prohibitions inF229Article 101(1) or Article 102;
- a
“relevant party” means—
- a
in relation to the Chapter I prohibition F140or the prohibition inF229Article 101(1), a party to the agreement which is alleged to have infringed the prohibition; and
- b
in relation to the Chapter II prohibition F141or the prohibition in F229Article 102, the undertaking whose conduct is alleged to have infringed the prohibition.
- a
3
Rules of court may make provision in respect of assistance to be given by the F336CMA to the court in Part I proceedings.
F59Findings of infringements
S. 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 infringements
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 F230Article 101(1) of the Treaty;
d
the prohibition in F231Article 102 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 F337CMA that the Chapter I prohibition or the Chapter II prohibition has been infringed;
b
4
The periods mentioned in subsection (2) are—
a
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 F206...;
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 F209Supreme Court 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 principles
I759C27F142Interpretation of Part 1.
1
In this Part—
F143"agreement" is to be read with section 2(5) and (6);
F52...
F234“Article 101(1)” means Article 101(1) of the Treaty;
F234“Article 101(3)” means Article 101(3) of the Treaty;
F234“Article 102” means Article 102 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);
F338“the CMA” means the Competition and Markets Authority;
“the Commission” F341... means the European Commission;
“the Council” means the Council of the European Union;
“the court”, except in sections 58F63, 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;
- a
F54...
“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 F234General Court;
F144“the EC Competition Regulation” means Council Regulation (EC) No. 1/2003 of 16th December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty;
F145“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);
F146“investigation” means an investigation under section 25;
“Minister of the Crown” has the same meaning as in the Ministers of the M3Crown Act 1975;
F70“OFCOM” means the Office of Communications;
“officer”, in relation to a body corporate, includes a director, manager or secretary and, in relation to a partnership in Scotland, includes a partner;
F339...
“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;
F147“premises” includes any land or means of transport;
“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
F234"the Treaty” means the Treaty on the Functioning of the European Union;
F53“ the Tribunal” means the Competition Appeal Tribunal;
“Tribunal rules” means rules under section 15 of the Enterprise Act 2002.
F148“working day” means a day which is not—
- a
Saturday,
- b
Sunday,
- c
Christmas Day,
- d
Good Friday, or
- e
a day which is a bank holiday under the Banking and Financial Dealings Act 1971 (c. 80) in any part of the United Kingdom.
- a
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
C25C3960 Principles to be applied in determining questions.
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 F210EU law in relation to competition within F211the European Union.
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 F210EU 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 F342CMA ; and
b
any person acting on behalf of the F342CMA , 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 F210EU law;
b
the civil liability of an undertaking for harm caused by its infringement of F210EU law.
Part IIF76Inspections under Articles 20, 21 and 22(2)
Pt. 2 heading substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 1 para. 36
F38361 Interpretation of Part 2
In this Part—
“Article 20 inspection” means an inspection ordered by a decision of the Commission under Article 20(4) of the EC Competition Regulation which is not an Article 22(2) inspection;
“Article 21 inspection” means an inspection ordered by a decision of the Commission under Article 21 of the EC Competition Regulation;
“Article 22(2) inspection” means an inspection requested by the Commission under Article 22(2) of the EC Competition Regulation;
“books and records” includes books and records stored on any medium;
F382“the CMA” means the Competition and Markets Authority
“the Commission” means the European Commission;
“the EC Competition Regulation” means Council Regulation (EC) No. 1/2003 of 16th December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty;
F384...
“premises” includes any land or means of transport;
F385“the Treaty” means the Treaty on the Functioning of the European Union
F381“the Tribunal” means the Competition Appeal Tribunal;
F381“Tribunal rules” means rules under section 15 of the Enterprise Act 2002;
62F150Power to enter business premises under a warrant: Article 20 inspections
F3431
On an application made to it by the CMA, the High Court or the Tribunal must issue a warrant if it is satisfied that—
F151a
the Commission has ordered an Article 20 inspection;
b
the Article 20 inspection is being, or is likely to be, obstructed; and
c
the measures that would be authorised by the warrant are neither arbitrary nor excessive having regard to the subject matter of the Article 20 inspection.
2
F153An Article 20 inspection is being obstructed if—
a
3
F159An Article 20 inspection is also being obstructed if there are reasonable grounds for suspecting that there are F161on any business premises books or records F160on the premises—
a
b
which have not been produced as required.
4
F164An Article 20 inspection is likely to be obstructed if—
a
F165an official of the Commission (“the Commission official”) is authorised for the purpose of the investigation;
b
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.
F1525
A warrant under this section shall authorise a named officer of the F345CMA and any other F345CMA officer, or Commission official, accompanying the named officer—
a
to enter any business premises specified in the warrant using such force as is reasonably necessary for the purpose;
b
to search for books and records which a Commission official has power to examine, using such force as is reasonably necessary for the purpose;
c
to take or obtain copies of or extracts from such books and records;
d
to seal the premises, any part of the premises or any books or records which a Commission official has power to seal, for the period and to the extent necessary for the inspection.
F645A
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.
F3448A
An application for a warrant under this section must be made—
a
in the case of an application to the High Court, in accordance with rules of court;
b
in the case of an application to the Tribunal, in accordance with Tribunal rules.
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.
F14910
In this section—
“business premises” means any premises of an undertaking or association of undertakings which a Commission official has under Article 20 of the EC Competition Regulation power to enter in the course of the Article 20 inspection;
“Commission official” means any of the persons authorised by the Commission to conduct the Article 20 inspection; and
“ F345CMA officer” means any officer of the F345CMA whom the F345CMA has authorised in writing to accompany the named officer.
11
In subsection (10), the reference in the definition of “business premises” to Article 20 of the EC Competition Regulation does not include a reference to that Article as applied by Article 21 of that Regulation.
62AF73Power to enter non-business premises under a warrant: Article 21 inspections
1
F346On an application made to it by the CMA, the High Court or the Tribunal must issue a warrant if it is satisfied that—
a
the Commission has ordered an Article 21 inspection; and
b
the measures that would be authorised by the warrant are neither arbitrary nor excessive having regard in particular to the matters mentioned in subsection (2).
2
Those matters are—
a
the seriousness of the suspected infringement of F235Article 101(1) or 102 of the Treaty;
b
the importance of the evidence sought;
c
the involvement of the undertaking or association of undertakings concerned; and
d
whether it is reasonably likely that business books and records relating to the subject matter of the Article 21 inspection are kept on the non-business premises that would be specified in the warrant.
3
4
5
6
A warrant granted under this section may authorise the use, for either or both of the purposes mentioned in subsections (3) and (4), of such force as is reasonably necessary.
7
A warrant under this section may authorise persons specified in the warrant to accompany the named officer who is executing it.
8
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.
9
On leaving any premises entered by virtue of a 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.
10
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.
F34710A
An application for a warrant under this section must be made—
a
in the case of an application to the High Court, in accordance with rules of court;
b
in the case of an application to the Tribunal, in accordance with Tribunal rules.
11
In the application of this section to Scotland, references to the High Court are to be read as references to the Court of Session.
12
In this section—
“non-business premises” means any premises to which a decision of the Commission ordering the Article 21 inspection relates;
“Commission official” means any of the persons authorised by the Commission to conduct the Article 21 inspection; and
“ F349CMA officer” means any officer of the F349CMA whom the F349CMA has authorised in writing to accompany the named officer.
62BF74Powers when conducting an Article 22(2) inspection
1
For the purposes of an Article 22(2) inspection, an authorised officer of the F350CMA has the powers specified in Article 20(2) of the EC Competition Regulation.
2
For the purposes of this section and section 63—
“authorised officer of the F350CMA ” means any officer of the F350CMA to whom an authorisation has been given; and
“authorisation” means an authorisation given in writing by the F350CMA for the purposes of the Article 22(2) inspection which—
- i
identifies the officer;
- ii
indicates the subject matter and purpose of the inspection; and
- iii
draws attention to any penalties which a person may incur under the EC Competition Regulation in connection with the inspection.
- i
63F170Power to enter business premises under a warrant: Article 22(2) inspections.
1
F351On an application made to it by the CMA, the High Court or the Tribunal must issue a warrant if it is satisfied that—
F171a
the Commission has requested the F353CMA to conduct an Article 22(2) inspection which the Commission has ordered by a decision under Article 20(4) of the EC Competition Regulation;
b
the Article 22(2) inspection is being, or is likely to be, obstructed; and
c
the measures that would be authorised by the warrant are neither arbitrary nor excessive having regard to the subject matter of the Article 22(2) inspection.
2
F172An Article 22(2) inspection is being obstructed if—
a
b
the officer has produced his authorisation to the undertaking, or association of undertakings, concerned; and
3
F178An Article 22(2) inspection is also being obstructed if—
a
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
F173An Article 22(2) inspection is likely to be obstructed if—
a
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.
F1745
A warrant under this section shall authorise a named authorised officer of the F354CMA and any other authorised officer of the F354CMA , or Commission official, accompanying the named authorised officer—
a
to enter any business premises specified in the warrant using such force as is reasonably necessary for the purpose;
b
to search for books and records which an authorised officer of the F354CMA has power to examine, using such force as is reasonably necessary for the purpose;
c
to take or obtain copies of or extracts from such books and records; and
d
to seal the premises, any part of the premises or any books or records which an authorised officer of the F354CMA has power to seal, for the period and to the extent necessary for the inspection.
F655A
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 F183named authorised 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.
F3528A
An application for a warrant under this section must be made—
a
in the case of an application to the High Court, in accordance with rules of court;
b
in the case of an application to the Tribunal, in accordance with Tribunal rules.
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.
F16910
In this section—
“business premises” means any premises of an undertaking or association of undertakings which an authorised officer of the F355CMA has power to enter in the course of the Article 22(2) inspection;
“Commission official” means any person authorised by the Commission to assist with the Article 22(2) inspection.
64 Entry of premises under sections 62F184, 62A and 63: supplementary.
1
A warrant issued under section 62F186, 62A or 63 must indicate—
a
the subject matter and purpose of the F185inspection;
b
the nature of the offence created by section 65.
2
The powers conferred by section 62F187, 62A 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—
F188“named officer” means—
- a
for the purposes of a warrant issued under section 62 or 62A, the officer named in the warrant; and
- b
for the purposes of a warrant issued under section 63, the authorised officer named in the warrant;
- a
“occupier”, in relation to any premises, means a person whom the named officer reasonably believes is the occupier of those premises.
65 Offences.
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 62F189, 62A 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.
65AF77Privileged communications: Article 22(2) inspections
1
A person shall not be required, by virtue of any provision of section 62B or 63, 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
the reference to the High Court is to be read as a reference to the Court of Session; and
b
the reference to legal professional privilege is to be read as a reference to confidentiality of communications.
65BF77Use of statements in prosecution: Article 22(2) inspections
A statement made by a person in response to a requirement imposed by virtue of section 62B or 63 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.
F75PART 2AArticle 22(1) investigations
Pt. 2A inserted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 1 para. 44
65CInterpretation of Part 2A
1
In this Part—
“Article 22(1) investigation” means an investigation conducted by the F357CMA on behalf and for the account of a competition authority of another Member State pursuant to Article 22(1) of the EC Competition Regulation;
“the Commission” means the European Commission;
“competition authority of another Member State” means a competition authority designated as such under Article 35 of the EC Competition Regulation by a Member State other than the United Kingdom;
“the EC Competition Regulation” means Council Regulation (EC) No. 1/2003 of 16th December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty; and
“investigating officer” has the meaning given in section 65F(1).
2
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 F360CMA by this Part to require information includes power to require any document which it believes may contain that information.
65DPower to conduct an Article 22(1) investigation
1
In any of the following cases, the F361CMA may conduct an Article 22(1) investigation.
2
The first case is where there are reasonable grounds for suspecting that there is an agreement which—
a
may affect trade between Member States; and
b
has as its object or effect the prevention, restriction or distortion of competition within F211the European Union.
3
The second case is where there are reasonable grounds for suspecting that the prohibition in F237Article 102 has been infringed.
4
The third case is where there are reasonable grounds for suspecting that, at some time in the past, there was an agreement which at that time—
a
may have affected trade between Member States; and
b
had as its object or effect the prevention, restriction or distortion of competition within F211the European Union.
5
It is immaterial for the purposes of subsection (4) whether the agreement in question remains in existence.
6
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.
65EPowers when conducting Article 22(1) investigations
1
For the purposes of an Article 22(1) investigation, the F362CMA may require any person to produce to it a specified document, or to provide it with specified information, which it 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 Article 22(1) investigation; and
b
the nature of the offences created by sections 65L to 65N.
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 F363CMA 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.
65FPower to enter business premises without a warrant
1
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 Article 22(1) investigation; and
c
indicates the nature of the offences created by sections 65L to 65N.
3
Subsection (2) does not apply—
a
if the F365CMA has a reasonable suspicion that the premises are, or have been, occupied by—
i
a party to an agreement which it is investigating under section 65D; or
ii
an undertaking the conduct of which it is investigating under section 65D; 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 stored 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 or from which it can readily be produced in a visible and legible form;
f
take any steps which appear to be necessary for the purpose of preserving or preventing interference with any document which he consider relates to any matter relevant to the investigation.
6
In this section “business premises” means premises (or any part of premises) not used as a dwelling.
65GPower to enter business premises under a warrant
1
F366On an application made to it by the CMA, the court or the Tribunal may issue a warrant if it is satisfied that—
a
there are reasonable grounds for suspecting that there are on any business premises documents—
i
the production of which has been required under section 65E or 65F; and
ii
which have not been produced as required;
b
there are reasonable grounds for suspecting that—
i
there are on any business premises documents which the F369CMA has power under section 65E 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 65F 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 F370CMA and any other of its officers whom the F370CMA 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 stored in any electronic form and is accessible from the premises and which the named officer considers relates to any matter relevant to the Article 22(1) investigation, to be produced in a form—
i
in which it can be taken away, and
ii
in which it is visible and legible or 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), F367the court or (as the case may be) the Tribunal is satisfied that it is reasonable to suspect that there are also on the premises other documents relating to the Article 22(1) investigation concerned, the warrant shall also authorise action mentioned in subsection (2) to be taken in relation to any such document.
4
A warrant under this section may authorise persons specified in the warrant to accompany the named officer who is executing it.
5
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.
6
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.
7
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.
8
Any document of which possession is taken under subsection (2)(c) may be retained for a period of three months.
F3688A
An application for a warrant under this section must be made—
a
in the case of an application to the court, in accordance with rules of court;
b
in the case of an application to the Tribunal, in accordance with Tribunal rules.
9
In this section “business premises” has the same meaning as in section 65F.
65H Power to enter domestic premises under a warrant
1
F371On an application made to it by the CMA, the court or the Tribunal may issue a warrant if it is satisfied that—
a
there are reasonable grounds for suspecting that there are on any domestic premises documents—
i
the production of which has been required under section 65E; and
ii
which have not been produced as required; or
b
there are reasonable grounds for suspecting that—
i
there are on any domestic premises documents which the F374CMA has power under section 65E 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.
2
A warrant under this section shall authorise a named officer of the F375CMA , and any other of its officers whom the F375CMA 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 or belief, where it may be found;
f
to require any information which is stored 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 or 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), F372the court or (as the case may be) the Tribunal 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.
4
A warrant under this section may authorise persons specified in the warrant to accompany the named officer who is executing it.
5
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.
6
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.
7
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.
8
Any document of which possession is taken under subsection (2)(c) may be retained for a period of three months.
F3738A
An application for a warrant under this section must be made—
a
in the case of an application to the court, in accordance with rules of court;
b
in the case of an application to the Tribunal, in accordance with Tribunal rules.
9
In this section, “domestic premises” means premises (or any part of premises) that are used as a dwelling and are—
a
premises also used in connection with the affairs of an undertaking or association of undertakings; or
b
premises where documents relating to the affairs of an undertaking or association of undertakings are kept.
65IEntry of premises under a warrant: supplementary
1
A warrant issued under section 65G or 65H must indicate—
a
the subject matter of the Article 22(1) investigation;
b
the nature of the offences created by sections 65L to 65N.
2
The powers conferred by section 65G or 65H 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.
65J Privileged communications
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
the reference to the High Court is to be read as a reference to the Court of Session; and
b
the reference to legal professional privilege is to be read as a reference to confidentiality of communications.
65KUse of statements in prosecution
A statement made by a person in response to a requirement imposed by virtue of any of sections 65E to 65H 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.
65LOffences
1
A person is guilty of an offence if he fails to comply with a requirement imposed on him under section 65E, 65F, 65G or 65H.
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 65E or 65F 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 65F.
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 65G or 65H 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.
65MDestroying or falsifying documents
1
A person is guilty of an offence if, having been required to produce a document under section 65E, 65F, 65G or 65H—
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.
65NFalse or misleading information
1
If information is provided by a person to the F376CMA in connection with any function of the F376CMA 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 F376CMA in connection with any of its 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.
Part III Monopolies
F6666 Monopoly investigations: general.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F6667 Offences.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
68 Services relating to use of land.
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.
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).
Part IV Supplemental and Transitional
70 Contracts as to patented products etc.
Sections 44 and 45 of the M6Patents Act 1977 shall cease to have effect.
71 Regulations, orders and rules.
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),
F67ca
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.
72 Offences by bodies corporate etc.
1
This section applies to an offence under any of sections 42 to 44, F19065 or 65L to 65N.
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.
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.
F1924
If an investigation is conducted under section 25 or 65D in respect of an agreement where none of the parties is the Crown or a person in the public service of the Crown, or in respect of conduct otherwise than by the Crown or such a person—
a
the power conferred by section 27 or (as the case may be) section 65F 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
none of sections 28, 28A, 65G and 65H applies 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 62F193, 62A 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 F194an agreement to which the Crown or a person in the service of the Crown is a party, or conduct by the Crown or such a person.
F1916A
In subsections (4) and (6) “agreement” includes a suspected agreement and is to be read as applying equally to, or in relation to, a decision by an association of undertakings or a concerted practice; and “conduct” includes suspected conduct.
7
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 F196or 65F, or
b
that may be conferred by a warrant under F197section 28, 28A, 62, 62A, 63, 65G or 65H,
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.
I874 Amendments, transitional provisions, savings and repeals.
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.
I103
The enactments set out in Schedule 14 are repealed.
75 Consequential and supplementary provision.
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.
75AF78Rules in relation to Part 2 and Part 2A
1
The F377CMA may make such rules about procedural and other matters in connection with the carrying into effect of the provisions of Parts 2 and 2A as it considers appropriate.
2
If the F377CMA is preparing rules under this section it must consult such persons as it considers appropriate.
3
No rule made by the F377CMA is to come into operation until it has been approved by an order made by the Secretary of State.
4
The Secretary of State may approve any rule made by the F377CMA —
a
in the form in which it is submitted; or
b
subject to such modifications as he considers appropriate.
5
6
Subsections (3) to (5) apply also to any alteration of the rules made by the F377CMA .
7
The Secretary of State may, after consulting the F377CMA , by order vary or revoke any rules made under this section.
8
If the Secretary of State considers that rules should be made under this section with respect to a particular matter he may direct the F377CMA to exercise its powers under this section and make rules about that matter.
P1P2P3P476 Short title, commencement and extent.
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.
Pt. 1: certain functions made exercisable concurrently (26.11.1998 for certain purposes and prosp. 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)