C18C19C20 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
Chapter I Agreements
Introduction
I11 Enactments replaced.
The following shall cease to have effect—
a
the Restrictive Practices Court Act 1976 (c. 33),
b
the Restrictive Trade Practices Act 1976 (c. 34),
c
the Resale Prices Act 1976 (c. 53), and
d
the Restrictive Trade Practices Act 1977 (c. 19).
The prohibition
2 Agreements etc. preventing, restricting or distorting competition.
C11
Subject to section 3, agreements between undertakings, decisions by associations of undertakings or concerted practices which—
a
may affect trade within the United Kingdom, and
b
have as their object or effect the prevention, restriction or distortion of competition within the United Kingdom,
are prohibited unless they are exempt in accordance with the provisions of this Part.
2
Subsection (1) applies, in particular, to agreements, decisions or practices which—
a
directly or indirectly fix purchase or selling prices or any other trading conditions;
b
limit or control production, markets, technical development or investment;
c
share markets or sources of supply;
d
apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;
e
make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.
3
Subsection (1) applies only if the agreement, decision or practice is, or is intended to be, implemented in the United Kingdom.
4
Any agreement or decision which is prohibited by subsection (1) is void.
5
A provision of this Part which is expressed to apply to, or in relation to, an agreement is to be read as applying equally to, or in relation to, a decision by an association of undertakings or a concerted practice (but with any necessary modifications).
6
Subsection (5) does not apply where the context otherwise requires.
7
In this section “the United Kingdom” means, in relation to an agreement which operates or is intended to operate only in a part of the United Kingdom, that part.
8
The prohibition imposed by subsection (1) is referred to in this Act as “the Chapter I prohibition”.
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). F97...
F4d
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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.
1
The F5OFT 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 F5it 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 F5OFT considers it appropriate to impose; and
b
has effect for such period as the F5OFT 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.
1
If the F6OFT has reasonable grounds for believing that there has been a material change of circumstance since F6it granted an individual exemption, F6it 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 F6OFT, by notice in writing, to take any of the steps mentioned in subsection (1).
5
Any step taken by the F6OFT 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 F7OFT 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.
8
In this section and section 7 “specified” means specified in a block exemption order.
7 Block exemptions: opposition.
1
A block exemption order may provide that a party to an agreement which—
a
does not qualify for the block exemption created by the order, but
b
satisfies specified criteria,
may notify the F9OFT
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 F9OFT
—
a
is opposed to its being so treated; and
b
gives notice in writing to the party concerned of F9its 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 F9OFT
sufficient time to consider whether to oppose under subsection (2).
8 Block exemptions: procedure.
1
Before making a recommendation under section 6(1), the F10OFT must—
a
b
consider any representations about it which are made to F11it.
2
3
4
Subsection (1) also applies to any proposed recommendation under subsection (3).
5
Before exercising F11its 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 F10OFT of the proposed variation or revocation; and
b
take into account any comments made by the F10OFT.
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.
9 The criteria for individual and block exemptions.
This section applies to any agreement which—
a
contributes to—
i
improving production or distribution, or
ii
promoting technical or economic progress,
while allowing consumers a fair share of the resulting benefit; but
b
does not—
i
impose on the undertakings concerned restrictions which are not indispensable to the attainment of those objectives; or
ii
afford the undertakings concerned the possibility of eliminating competition in respect of a substantial part of the products in question.
10 Parallel exemptions.
1
An agreement is exempt from the Chapter I prohibition if it is exempt from the Community prohibition—
a
by virtue of a Regulation,
b
because it has been given exemption by the Commission, or
c
because it has been notified to the Commission under the appropriate opposition or objection procedure and—
i
the time for opposing, or objecting to, the agreement has expired and the Commission has not opposed it; or
ii
the Commission has opposed, or objected to, the agreement but has withdrawn its opposition or objection.
2
An agreement is exempt from the Chapter I prohibition if it does not affect trade between Member States but otherwise falls within a category of agreement which is exempt from the Community prohibition by virtue of a Regulation.
3
An exemption from the Chapter I prohibition under this section is referred to in this Part as a parallel exemption.
4
A parallel exemption—
a
takes effect on the date on which the relevant exemption from the Community prohibition takes effect or, in the case of a parallel exemption under subsection (2), would take effect if the agreement in question affected trade between Member States; and
b
ceases to have effect—
i
if the relevant exemption from the Community prohibition ceases to have effect; or
ii
on being cancelled by virtue of subsection (5) or (7).
5
In such circumstances and manner as may be specified in rules made under section 51, the F13OFT 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 F13OFT has the effect of cancelling the exemption.
8
9
For the purpose of this section references to an agreement being exempt from the Community prohibition are to be read as including references to the prohibition being inapplicable to the agreement by virtue of a Regulation or a decision by the Commission.
10
In this section—
“the Community prohibition” means the prohibition contained in—
- a
paragraph 1 of Article 85;
- b
any corresponding provision replacing, or otherwise derived from, that provision;
- c
such other Regulation as the Secretary of State may by order specify; and
- 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 the Community prohibition (and the Commission) subject to any modifications which the Secretary of State may by order prescribe.
11 Exemption for certain other agreements.
1
The fact that a ruling may be given by virtue of Article 88 of the Treaty on the question whether or not agreements of a particular kind are prohibited by Article 85 does not prevent such agreements from being subject to the Chapter I prohibition.
2
But the Secretary of State may by regulations make such provision as he considers appropriate for the purpose of granting an exemption from the Chapter I prohibition, in prescribed circumstances, in respect of such agreements.
3
An exemption from the Chapter I prohibition by virtue of regulations under this section is referred to in this Part as a section 11 exemption.
Notification
I312 Requests for F15OFT
to examine agreements.
1
Sections 13 and 14 provide for an agreement to be examined by the F15OFT
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 F15OFT
, 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 F15OFT
—
a
has given a direction withdrawing an exclusion; or
b
is considering whether to give such a direction.
C213 Notification for guidance.
1
A party to an agreement who applies for the agreement to be examined under this section must—
a
notify the F16OFT of the agreement; and
b
apply to F16the OFT for guidance.
2
3
If the F16OFT considers that the agreement is likely to infringe the prohibition if it is not exempt, F16its 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 F16it 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 F16OFT under this section, no penalty is to be imposed under this Part in respect of any infringement of the prohibition by the agreement which occurs during the period—
a
beginning with the date on which notification was given; and
b
ending with such date as may be specified in a notice in writing given to the applicant by the F16OFT when the application has been determined.
5
The date specified in a notice under subsection (4)(b) may not be earlier than the date on which the notice is given.
C314 Notification for a decision.
1
A party to an agreement who applies for the agreement to be examined under this section must—
a
notify the F17OFT of the agreement; and
b
apply to F17the OFT for a decision.
2
On an application under this section, the F17OFT 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 F17OFT 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 F17OFT 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 F17OFT 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.
1
This section applies to an agreement if the F18OFT 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
F18it would be likely to grant the agreement an individual exemption if asked to do so.
2
The F18OFT 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 F18it for a decision under section 14 with respect to the agreement; or
d
a complaint about the agreement has been made to F18it 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 F18OFT may remove the immunity given by subsection (3) if—
a
F18it takes action under this Part with respect to the agreement in one of the circumstances mentioned in subsection (2);
b
F18it considers it likely that the agreement will infringe the prohibition; and
5
If the F18OFT has a reasonable suspicion that information—
b
which was provided to F18it by a party to the agreement,
was incomplete, false or misleading in a material particular, the date specified in a notice under subsection (4)(c) may be earlier than the date on which the notice is given.
C516 Effect of a decision that the Chapter I prohibition has not been infringed.
1
This section applies to an agreement if the F19OFT has determined an application under section 14 by making a decision that the agreement has not infringed the Chapter I prohibition.
2
The F19OFT 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 F19OFT may remove the immunity given by subsection (3) if—
a
F19it takes action under this Part with respect to the agreement in one of the circumstances mentioned in subsection (2);
b
F19it considers that it is likely that the agreement will infringe the prohibition; and
5
If the F19OFT has a reasonable suspicion that information—
b
which was provided to F19it 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 F20OFT to consider conduct.
1
Sections 21 and 22 provide for conduct of a person which that person thinks may infringe the Chapter II prohibition to be considered by the F20OFT 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 F20OFT, in considering an application.
21 Notification for guidance.
1
A person who applies for conduct to be considered under this section must—
a
notify the F21OFT of it; and
b
apply to F21the OFT for guidance.
2
22 Notification for a decision.
1
A person who applies for conduct to be considered under this section must—
a
notify the F22OFT of it; and
b
apply to F22the OFT for a decision.
2
On an application under this section, the F22OFT 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.
1
This section applies to conduct if the F23OFT has determined an application under section 21 by giving guidance that the conduct is unlikely to infringe the Chapter II prohibition.
2
The F23OFT 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 F23it.
3
No penalty may be imposed under this Part in respect of any infringement of the Chapter II prohibition by conduct to which this section applies.
4
But the F23OFT may remove the immunity given by subsection (3) if—
a
F23it takes action under this Part with respect to the conduct in one of the circumstances mentioned in subsection (2);
b
F23it considers that it is likely that the conduct will infringe the prohibition; and
5
If the F23OFT has a reasonable suspicion that information—
b
which was provided to F23it by an undertaking engaging in the conduct,
was incomplete, false or misleading in a material particular, the date specified in a notice under subsection (4)(c) may be earlier than the date on which the notice is given.
24 Effect of a decision that the Chapter II prohibition has not been infringed.
1
This section applies to conduct if the F24OFT has determined an application under section 22 by making a decision that the conduct has not infringed the Chapter II prohibition.
2
The F24OFT 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 F24OFT may remove the immunity given by subsection (3) if—
a
F24it takes action under this Part with respect to the conduct in one of the circumstances mentioned in subsection (2);
b
F24it considers that it is likely that the conduct will infringe the prohibition; and
5
If the F24OFT has a reasonable suspicion that information—
b
which was provided to F24it 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
25F25OFT’s power to investigate.
The F25OFT may conduct an investigation if there are reasonable grounds for suspecting—
a
that the Chapter I prohibition has been infringed; or
b
that the Chapter II prohibition has been infringed.
C7C2326 Powers when conducting investigations.
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 42 to 44.
4
In subsection (1) “specified” means—
a
specified, or described, in the notice; or
b
falling within a category which is specified, or described, in the notice.
5
The F27OFT 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.
C8C2327 Power to enter 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 F28OFT has a reasonable suspicion that the premises are, or have been, occupied by—
i
a party to an agreement which F29it is investigating under section 25(a); or
ii
an undertaking the conduct of which F29it is investigating under section 25(b); or
b
if the investigating officer has taken all such steps as are reasonably practicable to give notice but has not been able to do so.
4
In a case falling within subsection (3), the power of entry conferred by subsection (1) is to be exercised by the investigating officer on production of—
a
evidence of his authorisation; and
b
a document containing the information referred to in subsection (2)(b) and (c).
5
An investigating officer entering any premises under this section may—
a
take with him such equipment as appears to him to be necessary;
b
require any person on the premises—
i
to produce any document which he considers relates to any matter relevant to the investigation; and
ii
if the document is produced, to provide an explanation of it;
c
require any person to state, to the best of his knowledge and belief, where any such document is to be found;
d
take copies of, or extracts from, any document which is produced;
e
require any information which is F30stored 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 F31or from which it can readily be produced in a visible and legible form.
C9C2328 Power to enter premises under a warrant.
1
On an application made by the F32OFT to the court in accordance with rules of court, a judge may issue a warrant if he is satisfied that—
a
there are reasonable grounds for suspecting that there are on any premises documents—
i
the production of which has been required under section 26 or 27; and
ii
which have not been produced as required;
b
there are reasonable grounds for suspecting that—
i
there are on any premises documents which the F32OFT has power under section 26 to require to be produced; and
ii
if the documents were required to be produced, they would not be produced but would be concealed, removed, tampered with or destroyed; or
c
an investigating officer has attempted to enter premises in the exercise of his powers under section 27 but has been unable to do so and that there are reasonable grounds for suspecting that there are on the premises documents the production of which could have been required under that section.
C102
A warrant under this section shall authorise a named officer of the F33OFT, and any other of F34the OFT’s officers whom the OFT has authorised in writing to accompany the named officer—
a
to enter the premises specified in the warrant, using such force as is reasonably necessary for the purpose;
b
to search the premises and take copies of, or extracts from, any document appearing to be of a kind in respect of which the application under subsection (1) was granted (“the relevant kind”);
c
to take possession of any documents appearing to be of the relevant kind if—
i
such action appears to be necessary for preserving the documents or preventing interference with them; or
ii
it is not reasonably practicable to take copies of the documents on the premises;
d
to take any other steps which appear to be necessary for the purpose mentioned in paragraph (c)(i);
e
to require any person to provide an explanation of any document appearing to be of the relevant kind or to state, to the best of his knowledge and belief, where it may be found;
C11C22f
to require any information which is F35stored 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 F36or from which it can readily be produced in a visible and legible form.
3
If, in the case of a warrant under subsection (1)(b), the judge is satisfied that it is reasonable to suspect that there are also on the premises other documents relating to the investigation concerned, the warrant shall also authorise action mentioned in subsection (2) to be taken in relation to any such document.
F903A
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.
C13C2329 Entry of premises under warrant: supplementary.
1
A warrant issued under section 28 must indicate—
a
the subject matter and purpose of the investigation;
b
the nature of the offences created by sections 42 to 44.
2
The powers conferred by section 28 are to be exercised on production of a warrant issued under that section.
3
If there is no one at the premises when the named officer proposes to execute such a warrant he must, before executing it—
a
take such steps as are reasonable in all the circumstances to inform the occupier of the intended entry; and
b
if the occupier is informed, afford him or his legal or other representative a reasonable opportunity to be present when the warrant is executed.
4
If the named officer is unable to inform the occupier of the intended entry he must, when executing the warrant, leave a copy of it in a prominent place on the premises.
5
In this section—
“named officer” means the officer named in the warrant; and
“occupier”, in relation to any premises, means a person whom the named officer reasonably believes is the occupier of those premises.
C14C2330 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.
30AF85Use of statements in prosecution
A statement made by a person in response to a requirement imposed by virtue of any of sections 26 to 28 may not be used in evidence against him on a prosecution for an offence under section 188 of the Enterprise Act 2002 unless, in the proceedings—
a
in giving evidence, he makes a statement inconsistent with it, and
b
evidence relating to it is adduced, or a question relating to it is asked, by him or on his behalf.
31 Decisions following an investigation.
1
Subsection (2) applies if, as the result of an investigation conducted under section 25, the F37OFT proposes to make—
a
a decision that the Chapter I prohibition has been infringed, or
b
a decision that the Chapter II prohibition has been infringed.
2
Before making the decision, the F37OFT must—
a
give written notice to the person (or persons) likely to be affected by the proposed decision; and
b
give that person (or those persons) an opportunity to make representations.
Enforcement
32 Directions in relation to agreements.
1
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
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 F42OFT 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.
1
This section applies if the F43OFT —
a
has a reasonable suspicion that the Chapter I prohibition has been infringed, or
b
has a reasonable suspicion that the Chapter II prohibition has been infringed,
but has not completed F43its investigation into the matter.
2
If the F43OFT considers that it is necessary for F43it to act under this section as a matter of urgency for the purpose—
a
of preventing serious, irreparable damage to a particular person or category of person, or
b
of protecting the public interest,
3
Before giving a direction under this section, the F43OFT must—
a
give written notice to the person (or persons) to whom F43it proposes to give the direction; and
b
give that person (or each of them) an opportunity to make representations.
4
5
A direction given under this section has effect while subsection (1) applies, but may be replaced if the circumstances permit by a direction under section 32 or (as appropriate) section 33.
6
In the case of a suspected infringement of the Chapter I prohibition, sections 32(3) and 34 also apply to directions given under this section.
7
In the case of a suspected infringement of the Chapter II prohibition, sections 33(3) and 34 also apply to directions given under this section.
36 Penalty for infringing Chapter I or Chapter II prohibition.
1
2
3
4
Subsection (1) is subject to section 39 and does not apply if the F44OFT is satisfied that the undertaking acted on the reasonable assumption that that section gave it immunity in respect of the agreement.
5
Subsection (2) is subject to section 40 and does not apply if the F44OFT is satisfied that the undertaking acted on the reasonable assumption that that section gave it immunity in respect of the conduct.
6
Notice of a penalty under this section must—
a
be in writing; and
b
specify the date before which the penalty is required to be paid.
7
The date specified must not be earlier than the end of the period within which an appeal against the notice may be brought under section 46.
8
No penalty fixed by the F44OFT 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 F44OFT 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
The F48OFT must prepare and publish guidance as to the appropriate amount of any penalty under this Part.
2
The F48OFT may at any time alter the guidance.
3
If the guidance is altered, the F48OFT 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
When setting the amount of a penalty under this Part, the F48OFT must have regard to the guidance for the time being in force under this section.
9
If a penalty or a fine has been imposed by the Commission, or by a court or other body in another Member State, in respect of an agreement or conduct, the F48OFT, an appeal tribunal or the appropriate court must take that penalty or fine into account when setting the amount of a penalty under this Part in relation to that agreement or conduct.
10
In subsection (9) “the appropriate court” means—
a
in relation to England and Wales, the Court of Appeal;
b
in relation to Scotland, the Court of Session;
c
in relation to Northern Ireland, the Court of Appeal in Northern Ireland;
d
the House of Lords.
39 Limited immunity for small agreements.
1
In this section “small agreement” means an agreement—
a
which falls within a category prescribed for the purposes of this section; but
b
is not a price fixing agreement.
2
The criteria by reference to which a category of agreement is prescribed may, in particular, include—
a
the combined turnover of the parties to the agreement (determined in accordance with prescribed provisions);
b
the share of the market affected by the agreement (determined in that way).
3
A party to a small agreement is immune from the effect of section 36(1); but the F49OFT may withdraw that immunity under subsection (4).
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 F49OFT 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 F50OFT 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.
41 Agreements notified to the Commission.
1
This section applies if a party to an agreement which may infringe the Chapter I prohibition has notified the agreement to the Commission for a decision as to whether an exemption will be granted under Article 85 with respect to the agreement.
2
A penalty may not be required to be paid under this Part in respect of any infringement of the Chapter I prohibition after notification but before the Commission determines the matter.
3
If the Commission withdraws the benefit of provisional immunity from penalties with respect to the agreement, subsection (2) ceases to apply as from the date on which that benefit is withdrawn.
4
The fact that an agreement has been notified to the Commission does not prevent the F53OFT from investigating it under this Part.
5
In this section “provisional immunity from penalties” has such meaning as may be prescribed.
Offences
42 Offences.
1
A person is guilty of an offence if he fails to comply with a requirement imposed on him under section 26, 27 or 28.
2
If a person is charged with an offence under subsection (1) in respect of a requirement to produce a document, it is a defence for him to prove—
a
that the document was not in his possession or under his control; and
b
that it was not reasonably practicable for him to comply with the requirement.
3
If a person is charged with an offence under subsection (1) in respect of a requirement—
a
to provide information,
b
to provide an explanation of a document, or
c
to state where a document is to be found,
it is a defence for him to prove that he had a reasonable excuse for failing to comply with the requirement.
4
Failure to comply with a requirement imposed under section 26 or 27 is not an offence if the person imposing the requirement has failed to act in accordance with that section.
5
A person is guilty of an offence if he intentionally obstructs an officer acting in the exercise of his powers under section 27.
6
A person guilty of an offence under subsection (1) or (5) is liable—
a
on summary conviction, to a fine not exceeding the statutory maximum;
b
on conviction on indictment, to a fine.
7
A person who intentionally obstructs an officer in the exercise of his powers under a warrant issued under section 28 is guilty of an offence and liable—
a
on summary conviction, to a fine not exceeding the statutory maximum;
b
on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.
43 Destroying or falsifying documents.
1
A person is guilty of an offence if, having been required to produce a document under section 26, 27 or 28—
a
he intentionally or recklessly destroys or otherwise disposes of it, falsifies it or conceals it, or
b
he causes or permits its destruction, disposal, falsification or concealment.
2
A person guilty of an offence under subsection (1) is liable—
a
on summary conviction, to a fine not exceeding the statutory maximum;
b
on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.
C1544 False or misleading information.
1
If information is provided by a person to the F54OFT in connection with any function of the F54OFT 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.
Chapter IV The Competition Commission and Appeals
The Commission
45 The Competition Commission.
1
There is to be a body corporate known as the Competition Commission.
2
The Commission is to have such functions as are conferred on it by or as a result of this Act.
3
The Monopolies and Mergers Commission is dissolved and its functions are transferred to the Competition Commission.
4
In any enactment, instrument or other document, any reference to the Monopolies and Mergers Commission which has continuing effect is to be read as a reference to the Competition Commission.
5
The Secretary of State may by order make such consequential, supplemental and incidental provision as he considers appropriate in connection with—
a
the dissolution of the Monopolies and Mergers Commission; and
b
the transfer of functions effected by subsection (3).
6
An order made under subsection (5) may, in particular, include provision—
a
for the transfer of property, rights, obligations and liabilities and the continuation of proceedings, investigations and other matters; or
b
amending any enactment which makes provision with respect to the Monopolies and Mergers Commission or any of its functions.
7
F92Schedules 7 and 7A make further provision about the Competition Commission.
F918
The Secretary of State may by order make such modifications in Part 2 of Schedule 7 and in Schedule 7A (performance of the Competition Commission’s general functions) as he considers appropriate for improving the performance by the Competition Commission of its functions.
Appeals
C1646 Appealable decisions.
1
2
3
In this section “decision” means a decision of the F55OFT—
a
as to whether the Chapter I prohibition has been infringed,
b
as to whether the Chapter II prohibition has been infringed,
c
as to whether to grant an individual exemption,
d
in respect of an individual exemption—
i
as to whether to impose any condition or obligation under section 4(3)(a) or 5(1)(c),
ii
where such a condition or obligation has been imposed, as to the condition or obligation,
iii
as to the period fixed under section 4(3)(b), or
iv
as to the date fixed under section 4(5),
e
as to—
i
whether to extend the period for which an individual exemption has effect, or
ii
the period of any such extension,
f
cancelling an exemption,
g
as to the imposition of any penalty under section 36 or as to the amount of any such penalty,
F93h
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
and includes a direction given under section 32, 33 or 35 and such other decision F57under 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.
C1747F94Third party appeals
1
A person who does not fall within section 46(1) or (2) may appeal to the Tribunal with respect to a decision falling within paragraphs (a) to (f) of section 46(3) or such other decision of the OFT under this Part as may be prescribed.
2
A person may make an appeal under subsection (1) only if the Tribunal considers that he has a sufficient interest in the decision with respect to which the appeal is made, or that he represents persons who have such an interest.
3
The making of an appeal under this section does not suspend the effect of the decision to which the appeal relates.
47AF86Monetary 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;
c
the prohibition in Article 81(1) of the Treaty;
d
the prohibition in Article 82 of the Treaty;
e
the prohibition in Article 65(1) of the Treaty establishing the European Coal and Steel Community;
f
the prohibition in Article 66(7) of that Treaty.
3
For the purpose of identifying claims which may be made in civil proceedings, any limitation rules that would apply in such proceedings are to be disregarded.
4
A claim to which this section applies may (subject to the provisions of this Act and Tribunal rules) be made in proceedings brought before the Tribunal.
5
But no claim may be made in such proceedings—
a
until a decision mentioned in subsection (6) has established that the relevant prohibition in question has been infringed; and
b
otherwise than with the permission of the Tribunal, during any period specified in subsection (7) or (8) which relates to that decision.
6
The decisions which may be relied on for the purposes of proceedings under this section are —
a
a decision of the OFT that the Chapter I prohibition or the Chapter II prohibition has been infringed;
b
a decision of the OFT that the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed;
c
a decision of the Tribunal (on an appeal from a decision of the OFT) that the Chapter I prohibition, the Chapter II prohibition or the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed;
d
a decision of the European Commission that the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed; or
e
a decision of the European Commission that the prohibition in Article 65(1) of the Treaty establishing the European Coal and Steel Community has been infringed, or a finding made by the European Commission under Article 66(7) of that Treaty.
7
The periods during which proceedings in respect of a claim made in reliance on a decision mentioned in subsection (6)(a), (b) or (c) may not be brought without permission are—
a
in the case of a decision of the OFT, the period during which an appeal may be made to the Tribunal under section 46, section 47 or the EC Competition Law (Articles 84 and 85) Enforcement Regulations 2001 (S.I. 2001/2916);
b
in the case of a decision of the OFT which is the subject of an appeal mentioned in paragraph (a), the period following the decision of the Tribunal on the appeal during which a further appeal may be made under section 49 or under those Regulations;
c
in the case of a decision of the Tribunal mentioned in subsection (6)(c), the period during which a further appeal may be made under section 49 or under those Regulations;
d
in the case of any decision which is the subject of a further appeal, the period during which an appeal may be made to the House of Lords from a decision on the further appeal;
and, where any appeal mentioned in paragraph (a), (b), (c) or (d) is made, the period specified in that paragraph includes the period before the appeal is determined.
8
The periods during which proceedings in respect of a claim made in reliance on a decision or finding of the European Commission may not be brought without permission are—
a
the period during which proceedings against the decision or finding may be instituted in the European Court; and
b
if any such proceedings are instituted, the period before those proceedings are determined.
9
In determining a claim to which this section applies the Tribunal is bound by any decision mentioned in subsection (6) which establishes that the prohibition in question has been infringed.
10
The right to make a claim to which this section applies in proceedings before the Tribunal does not affect the right to bring any other proceedings in respect of the claim.
47BF87Claims 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.
F5848 Appeal tribunals.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I549F59Further 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.
Chapter 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 F60OFT 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.
F2OFT’s rules, guidance and fees
Word in s. 51 cross-heading substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(38); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)
51 Rules.
1
2
Schedule 9 makes further provision about rules made under this section but is not to be taken as restricting the F62OFT 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 F64OFT 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 F64OFT—
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 F64OFT.
9
The Secretary of State may, after consulting the F64OFT, by order vary or revoke any rules made under this section.
10
52 Advice and information.
1
As soon as is reasonably practicable after the passing of this Act, the Director must prepare and publish general advice and information about—
a
the application of the Chapter I prohibition and the Chapter II prohibition, and
b
the enforcement of those prohibitions.
2
The F66OFT 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 F66OFT 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 F70OFT;
b
the other regulators; and
c
such other persons as he considers appropriate.
53 Fees.
1
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 F71OFT 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 F71OFT 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 F71OFT under section 51; and
b
“specified” means specified in rules.
Regulators
I654 Regulators.
1
In this Part “regulator” means F72—
a
the Director General of Telecommunications;
b
the Gas and Electricity Markets Authority;
c
the Director General of Electricity Supply for Northern Ireland;
d
the Director General of Water Services;
e
the Rail Regulator;
f
the Director General of Gas for Northern Ireland; and
g
the Civil Aviation Authority.
2
Parts II and III of Schedule 10 provide for functions of the F73OFT under this Part to be exercisable concurrently by regulators.
3
Parts IV and V of Schedule 10 make minor and consequential amendments in connection with the regulators’ competition functions.
4
The Secretary of State may make regulations for the purpose of co-ordinating the performance of functions under this Part (“Part I functions”) which are exercisable concurrently by two or more competent persons as a result of any provision made by Part II or III of Schedule 10 F1or by Chapter V of Part I of the Transport Act 2000.
C245
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 F73OFT 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.
C246
Provision made by virtue of subsection (5)(c) may provide for questions to be referred to and determined by the Secretary of State or by such other person as may be prescribed.
C247
“Competent person” means the F73OFT or any of the regulators.
Confidentiality and immunity from defamation
F9555 General restrictions on disclosure of information.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F9556 Director and Secretary of State to have regard to certain matters in relation to the disclosure of information.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
57 Defamation.
Findings of fact by F3OFT
Word in s. 58 cross-heading substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(43); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)
58 Findings of fact by F75OFT.
1
Unless the court directs otherwise or the F75OFT has decided to take further action in accordance with section 16(2) or 24(2), F76OFT’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 F77under 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 F78the Tribunal on such an appeal has confirmed the finding.
2
In this section—
“F76OFT’s finding” means a finding of fact made by the F75OFT in the course of—
- a
determining an application for a decision under section 14 or 22, or
- b
conducting an investigation under section 25;
- a
“Part I proceedings” means proceedings—
- a
in respect of an alleged infringement of the Chapter I prohibition or of the Chapter II prohibition; but
- b
which are brought otherwise than by the F75OFT;
- a
“relevant party” means—
- a
in relation to the Chapter I prohibition, a party to the agreement which is alleged to have infringed the prohibition; and
- b
in relation to the Chapter II prohibition, the undertaking whose conduct is alleged to have infringed the prohibition.
- a
3
Rules of court may make provision in respect of assistance to be given by the F75OFT to the court in Part I proceedings.
F88Findings 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 Article 81(1) of the Treaty;
d
the prohibition in Article 82 of the Treaty.
2
In such proceedings, the court is bound by a decision mentioned in subsection (3) once any period specified in subsection (4) which relates to the decision has elapsed.
3
The decisions are—
a
a decision of the OFT that the Chapter I prohibition or the Chapter II prohibition has been infringed;
b
a decision of the OFT that the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed;
c
a decision of the Tribunal (on an appeal from a decision of the OFT) that the Chapter I prohibition or the Chapter II prohibition has been infringed, or that the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed.
4
The periods mentioned in subsection (2) are—
a
in the case of a decision of the OFT, the period during which an appeal may be made to the Tribunal under section 46 or 47 or the EC Competition Law (Articles 84 and 85) Enforcement Regulations 2001 (S.I. 2001/2916);
b
in the case of a decision of the Tribunal mentioned in subsection (3)(c), the period during which a further appeal may be made under section 49 or under those Regulations;
c
in the case of any decision which is the subject of a further appeal, the period during which an appeal may be made to the House of Lords from a decision on the further appeal;
and, where any appeal mentioned in paragraph (a), (b) or (c) is made, the period specified in that paragraph includes the period before the appeal is determined.
Interpretation and governing principles
I759 Interpretation.
1
In this Part—
F79...
“Article 85” means Article 85 of the Treaty;
“Article 86” means Article 86 of the Treaty;
“block exemption” has the meaning given in section 6(4);
“block exemption order” has the meaning given in section 6(2);
“the Chapter I prohibition” has the meaning given in section 2(8);
“the Chapter II prohibition” has the meaning given in section 18(4);
“the Commission” (except in relation to the Competition Commission) means the European Commission;
“the Council” means the Council of the European Union;
“the court”, except in sections 58 F96, 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
F81...
“document” includes information recorded in any form;
“the EEA Agreement” means the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as it has effect for the time being;
“the European Court” means the Court of Justice of the European Communities and includes the Court of First Instance;
“individual exemption” has the meaning given in section 4(2);
“information” includes estimates and forecasts;
“investigating officer” has the meaning given in section 27(1);
“Minister of the Crown” has the same meaning as in the Ministers of the M3Crown Act 1975;
“officer”, in relation to a body corporate, includes a director, manager or secretary and, in relation to a partnership in Scotland, includes a partner;
F82“ the OFT” means the Office of Fair Trading;
“parallel exemption” has the meaning given in section 10(3);
“person”, in addition to the meaning given by the M4Interpretation Act 1978, includes any undertaking;
“premises” does not include domestic premises unless—
- a
they are also used in connection with the affairs of an undertaking, or
- b
documents relating to the affairs of an undertaking are kept there,
but does include any vehicle;
- a
“prescribed” means prescribed by regulations made by the Secretary of State;
“regulator” has the meaning given by section 54;
“section 11 exemption” has the meaning given in section 11(3); and
“the Treaty” means the treaty establishing the European Community.
F80“ the Tribunal” means the Competition Appeal Tribunal;
“Tribunal rules” means rules under section 15 of the Enterprise Act 2002.
2
The fact that to a limited extent the Chapter I prohibition does not apply to an agreement, because of an exclusion provided by or under this Part or any other enactment, does not require those provisions of the agreement to which the exclusion relates to be disregarded when considering whether the agreement infringes the prohibition for other reasons.
3
For the purposes of this Part, the power to require information, in relation to information recorded otherwise than in a legible form, includes power to require a copy of it in a legible form.
4
C2560 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 Community law in relation to competition within the Community.
2
At any time when the court determines a question arising under this Part, it must act (so far as is compatible with the provisions of this Part and whether or not it would otherwise be required to do so) with a view to securing that there is no inconsistency between—
a
the principles applied, and decision reached, by the court in determining that question; and
b
the principles laid down by the Treaty and the European Court, and any relevant decision of that Court, as applicable at that time in determining any corresponding question arising in Community law.
3
The court must, in addition, have regard to any relevant decision or statement of the Commission.
4
Subsections (2) and (3) also apply to—
a
the F84OFT; and
b
any person acting on behalf of the F84OFT, in connection with any matter arising under this Part.
5
In subsections (2) and (3), “court” means any court or tribunal.
6
In subsections (2)(b) and (3), “decision” includes a decision as to—
a
the interpretation of any provision of Community law;
b
the civil liability of an undertaking for harm caused by its infringement of Community law.
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)