The EC Competition Law (Articles 88 and 89) Enforcement Regulations 1996

Undertakings as an alternative to a reference

14.—(1) Where the Secretary of State has power to make a reference to the MMC under regulation 4, regulation 5 or regulation 20 he may, instead of making a reference, accept from such of the parties concerned as he considers appropriate undertakings to take such specified action as the Secretary of State considers appropriate —

(a) to terminate or prevent the recurrence of the infringement of Article 85(1) or Article 86 which it appears to the Secretary of State has occurred or may have occurred, or

(b) to enable him to make a declaration under paragraph (2).

(2) Where the Secretary of State has accepted undertakings under this regulation in respect of an agreement, and it appears to him that, if the undertakings are fulfilled, the conditions for application of Article 85(3) will be met in respect of the agreement, he may declare the provisions of Article 85(1) inapplicable to the agreement.

(3) The Secretary of State shall arrange to publish in such manner as appears to him to be appropriate —

(a) any undertakings accepted by him under paragraph (1);

(b) any declaration made by him under paragraph (2);

(c) such an account of his reasons for his decision to accept undertakings, and, if it be the case, for making a declaration as in his opinion is expedient for facilitating an understanding of his decision or his declaration;

(d) any variation or release of such an undertaking.

(4) Regulation 6(3) and (4) shall apply to the account referred to in paragraph (3)(c) as they apply to an account of the Secretary of State’s reasons published under regulation 6(1).

(5) Where an undertaking has been accepted under paragraph (1), it shall be the duty of the Director —

(a) to keep under review the carrying out of that undertaking, and from time to time to consider whether, by reason of any change of circumstances, the undertaking is no longer appropriate and either —

(i) one or more of the parties to it can be released from it, or

(ii) it needs to be varied or to be superseded by a new undertaking, and

(b) if it appears to him that the undertaking has not been or is not being fulfilled, that any person can be so released or that the undertaking needs to be varied or superseded, to give such advice to the Secretary of State as he may think proper in the circumstances.

(6) Where it appears to the Secretary of State that an undertaking accepted by him under paragraph (1) or which has superseded such an undertaking has not been, is not being, or will not be fulfilled, the Secretary of State may by order made by statutory instrument exercise such one or more of the powers specified in regulation 21 as he may consider it requisite to exercise for the purpose of terminating or preventing the recurrence of the infringement of Article 85 or Article 86 which it appears to the Secretary of State has occurred; and those powers may be so exercised to such extent and in such manner as the Secretary of State considers requisite for that purpose.

(7) In determining whether, or to what extent or in what manner, to exercise any of those powers, the Secretary of State shall take into account any advice given by the Director under paragraph (5).

(8) The provisions contained in an order under paragraph (6) may be different from those contained in the undertaking.

(9) On the making of an order under paragraph (6), the undertaking accepted under paragraph (1) or which has superseded such an undertaking shall be released by virtue of this regulation.