Enterprise Act 2002

Transport Act 2000 (c. 38)

44 (1) The Transport Act 2000 is amended as follows.

(2) In section 12 (licence modification references to Commission), subsections (9), (10) and (11) shall cease to have effect.

(3) After section 12 there is inserted—

“12A References under section 12: time limits

(1) Every reference under section 12 shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made.

(2) A report of the Competition Commission on a reference under section 12 shall not have effect (and no action shall be taken in relation to it under section 14) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by the CAA under subsection (3).

(3) The CAA may, if it has received representations on the subject from the Competition Commission and is satisfied that there are special reasons why the report cannot be made within the period specified in the reference, extend that period by no more than six months.

(4) No more than one extension is possible under subsection (3) in relation to the same reference.

(5) The CAA shall, in the case of an extension made by it under subsection (3)—

(a) publish that extension in such manner as it considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it; and

(b) send a copy of what has been published by it under paragraph (a) to the licence holder and the Secretary of State.

12B References under section 12: application of Enterprise Act 2002

(1) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (2) and (3), for the purposes of references under section 12 as they apply for the purposes of references under that Part—

(a) section 109 (attendance of witnesses and production of documents etc.);

(b) section 110 (enforcement of powers under section 109: general);

(c) section 111 (penalties);

(d) section 112 (penalties: main procedural requirements);

(e) section 113 (payments and interest by instalments);

(f) section 114 (appeals in relation to penalties);

(g) section 115 (recovery of penalties); and

(h) section 116 (statement of policy).

(2) Section 110 shall, in its application by virtue of subsection (1), have effect as if—

(a) subsection (2) were omitted; and

(b) in subsection (9) the words from “or section” to “section 65(3))” were omitted.

(3) Section 111(5)(b)(ii) shall, in its application by virtue of subsection (1), have effect as if—

(a) for the words “published (or, in the case of a report under section 50 or 65, given)” there were substituted “made”;

(b) for the words “published (or given)”, in both places where they appear, there were substituted “made”; and

(c) the words “by this Part” were omitted.

(4) Section 117 of the Enterprise Act 2002 (false or misleading information) shall apply in relation to functions of the Competition Commission in connection with references under section 12 as it applies in relation to its functions under Part 3 of that Act but as if, in subsections (1)(a) and (2), the words “the OFT,” and “or the Secretary of State” were omitted.

(5) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 109 to 117 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of subsection (1) or (4), have effect in relation to those sections as applied by virtue of those subsections.

(6) Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of those subsections.”

(4) In section 13 (reports on licence modification references)—

(a) after subsection (1) there is inserted—

“(1A) For the purposes of sections 14 to 17, a conclusion contained in a report of the Competition Commission is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted in connection with the reference concerned in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998.

(1B) If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference under section 12 as the conclusions of the Competition Commission, the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing.”;

(b) for subsection (2) there is substituted—

“(2) For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Competition Commission on a reference under section 12.

(2A) In making any report on a reference under section 12 the Competition Commission must have regard to the following considerations before disclosing any information.

(2B) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Competition Commission thinks is contrary to the public interest.

(2C) The second consideration is the need to exclude from disclosure (so far as practicable)—

(a) commercial information whose disclosure the Competition Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or

(b) information relating to the private affairs of an individual whose disclosure the Competition Commission thinks might significantly harm the individual’s interests.

(2D) The third consideration is the extent to which the disclosure of the information mentioned in subsection (2C)(a) or (b) is necessary for the purposes of the report.”

(5) For section 18 (provisions supplementary to exercise by Commission of functions under sections 15 and 16) there is substituted—

“18 Sections 15 and 16: general

(1) For the purposes of the law relating to defamation, absolute privilege attaches to any notice under section 15(4) or 16(4) or (6).

(2) In publishing or serving any notice under section 15(4) or 16(4) or (6), the Competition Commission must have regard to the following considerations before disclosing any information.

(3) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Competition Commission thinks is contrary to the public interest.

(4) The second consideration is the need to exclude from disclosure (so far as practicable)—

(a) commercial information whose disclosure the Competition Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or

(b) information relating to the private affairs of an individual whose disclosure the Competition Commission thinks might significantly harm the individual’s interests.

(5) The third consideration is the extent to which the disclosure of the information mentioned in subsection (4)(a) or (b) is necessary for the purposes of the notice.

(6) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (7) and (8), for the purposes of any investigation by the Competition Commission for the purposes of the exercise of its functions under section 15 or 16, as they apply for the purposes of any investigation on references under that Part—

(a) section 109 (attendance of witnesses and production of documents etc.);

(b) section 110 (enforcement of powers under section 109: general);

(c) section 111 (penalties);

(d) section 112 (penalties: main procedural requirements);

(e) section 113 (payments and interest by instalments);

(f) section 114 (appeals in relation to penalties);

(g) section 115 (recovery of penalties); and

(h) section 116 (statement of policy).

(7) Section 110 shall, in its application by virtue of subsection (6), have effect as if—

(a) subsection (2) were omitted;

(b) in subsection (4), for the words “the publication of the report of the Commission on the reference concerned” there were substituted “the publication by the Commission of a notice under section 16(6) of the Transport Act 2000 in connection with the reference concerned or, if no direction has been given by the Commission under section 15(2) of that Act in connection with the reference concerned and within the period permitted for that purpose, the latest day on which it was possible to give such a direction within the permitted period”; and

(c) in subsection (9) the words from “or section” to “section 65(3))” were omitted.

(8) Section 111(5)(b) shall, in its application by virtue of subsection (6), have effect as if for sub-paragraph (ii) there were substituted—

“(ii) if earlier, the day on which a notice is published by the Commission under section 16(6) of the Transport Act 2000 in connection with the reference concerned or, if no direction is given by the Commission under section 15(2) of that Act in connection with the reference concerned and within the period permitted for that purpose, the latest day on which such a direction may be given within the permitted period.”

(9) Section 117 of the Enterprise Act 2002 (false or misleading information) shall apply in relation to functions of the Competition Commission in connection with the exercise of its functions under section 15 or 16 as it applies in relation to its functions under Part 3 of that Act but as if, in subsections (1)(a) and (2), the words “the OFT,” and “or the Secretary of State” were omitted.

(10) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 109 to 117 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of subsection (6) or (9), have effect in relation to those sections as applied by virtue of those subsections.

(11) Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of those subsections.”

(6) In section 85 (interpretation of Chapter 5), in subsection (1), for paragraph (c) there is substituted—

“(c) the OFT is the Office of Fair Trading.”

(7) In section 86 (functions exercisable by CAA and the Director)—

(a) in subsections (1), (4) and (7), for “the Director” there is substituted “the OFT”;

(b) in subsection (3), for “the Director's” there is substituted “the OFT's”.

(8) In section 89 (carrying out functions)—

(a) for “the Director” (in each place) there is substituted “the OFT”;

(b) in subsection (2), for “he or it” there is substituted “it”.

(9) In section 90 (publication of information and advice)—

(a) in subsection (6), for “The Director must consult the CAA before publishing under section 124 of the 1973 Act” there is substituted “The Office of Fair Trading must consult the CAA before publishing under section 6 of the Enterprise Act 2002”;

(b) subsection (8) shall cease to have effect.

(10) In section 91 (review and information)—

(a) in subsections (3) and (4), for “the Director” (in each place) there is substituted “the Office of Fair Trading”;

(b) subsection (5) shall cease to have effect.

(11) In Schedule 9 (air traffic: information)—

(a) in paragraph 3—

(i) in sub-paragraph (2), for paragraph (b) there is substituted—

“(b) the Office of Fair Trading;”;

(ii) in sub-paragraph (3), after paragraph (r) there is inserted—

“(ra) the Enterprise Act 2002;”

(b) in paragraph 5, in sub-paragraph (3), for “Director General of Fair Trading” there is substituted “the Office of Fair Trading”.

(12) In Schedule 10 (competition test for exercise of bus functions)—

(a) for “Director” (in each place) there is substituted “OFT”;

(b) in paragraph 3(1), for “the Director General of Fair Trading (in this Schedule referred to as “the Director”) for him” there is substituted “the Office of Fair Trading (in this Schedule referred to as “the OFT”) for it”;

(c) in paragraph 4, in sub-paragraph (3)—

(i) for “he thinks” there is substituted “it thinks”;

(ii) for “bringing it” there is substituted “bringing the application”;

(iii) for “he is” there is substituted “the OFT is”;

(iv) the words “for him” shall cease to have effect;

(d) in paragraph 4—

(i) in sub-paragraph (4), for “he” (in both places) there is substituted “it”;

(ii) in sub-paragraph (5), for “him” there is substituted “it”;

(e) in paragraph 5, for “he” there is substituted “it”;

(f) in paragraph 6(1), for “him” (in each place) and “he” there is substituted “it” and “the OFT” respectively;

(g) in paragraph 9, for “he” there is substituted “the OFT”;

(h) in paragraph 10, for “he” and “his” (in both places) there is substituted “the OFT” and “its” respectively;

(i) in paragraph 11, for “he” (in each place) and “his” (in both places) there is substituted “the OFT” and “its” respectively;

(j) in paragraph 12(1), for “he” (in both places) there is substituted “the OFT”;

(k) in paragraphs 13 to 15, for “his” (in each place) there is substituted “its”;

(l) in paragraph 16, for “him” and “his” there is substituted “the OFT” and “its” respectively.