Competition Act 1998

Part IIU.K.[F1Inspections under Articles 20, 21 and 22(2)]

Textual Amendments

[F261Interpretation of Part 2U.K.

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;

  • “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;

  • “the OFT” means the Office of Fair Trading;

  • “premises” includes any land or means of transport;

  • “the Treaty” means the treaty establishing the European Community.]

Textual Amendments

62 [F3Power to enter business premises under a warrant: Article 20 inspections] U.K.

(1)A judge of the High Court [F4shall] issue a warrant if satisfied, on an application made to the High Court in accordance with rules of court by the [F5OFT]—

[F6(a) 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)[F7An Article 20 inspection] is being obstructed if—

(a)[F8a Commission official], exercising his power in accordance with [F9Article 20(3) of the EC Competition Regulation], has attempted to enter [F10any business premises] but has been unable to do so; and

(b)there are reasonable grounds for suspecting that there [F11on any business premises] are books or records[F12 on the premises] which the Commission official has power to examine.

(3)[F13An Article 20 inspection] is also being obstructed if there are reasonable grounds for suspecting that there are [F14on any business premises] books or records [F15on the premises]—

(a)the production of which has been required by [F16a Commission official] exercising his power in accordance with [F17Article 20(3) of the EC Competition Regulation]; and

(b)which have not been produced as required.

(4)[F18An Article 20 inspection] is likely to be obstructed if—

(a)[F19an official of the Commission (“the Commission official”) is authorised for the purpose of the investigation;]

(b)there are reasonable grounds for suspecting that there are [F20on any business premises] books or records [F21on the premises] which [F22a Commission official] has power to examine; and

(c)there are also reasonable grounds for suspecting that, if the Commission official attempted to exercise his power to examine any of the books or records, they would not be produced but would be concealed, removed, tampered with or destroyed.

[F23(5)A warrant under this section shall authorise a named officer of the OFT and any other OFT 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.]

[F24(5A)A warrant under this section may authorise persons specified in the warrant to accompany the named officer who is executing it.]

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

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

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

(9)In the application of this section to Scotland, references to the High Court are to be read as references to the Court of Session.

[F25(10)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

  • “OFT officer” means any officer of the OFT whom the OFT 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.]

Textual Amendments

F5Word in s. 62(1) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(47)(a); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

[F2662APower to enter non-business premises under a warrant: Article 21 inspectionsU.K.

(1)A judge of the High Court shall issue a warrant if satisfied, on an application made to the High Court in accordance with the rules of court by the OFT, 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 Article 81(1) or 82 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)A warrant under this section shall authorise a named officer of the OFT and any other OFT officer, or Commission official, accompanying the named officer to enter any non-business premises specified in the warrant.

(4)A warrant under this section may authorise a named officer of the OFT and any other OFT officer, or Commission official, accompanying the named officer to search for books or records which a Commission official has power to examine.

(5)A warrant under this section may authorise a named officer of the OFT and any other OFT officer, or Commission official, accompanying the named officer to take or obtain copies of books or records of which a Commission official has power to take or obtain copies.

(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.

(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

  • “OFT officer” means any officer of the OFT whom the OFT has authorised in writing to accompany the named officer.]

Textual Amendments

[F2762BPowers when conducting an Article 22(2) inspectionU.K.

(1)For the purposes of an Article 22(2) inspection, an authorised officer of the OFT 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 OFT” means any officer of the OFT to whom an authorisation has been given; and

  • “authorisation” means an authorisation given in writing by the OFT 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.]

Textual Amendments

63 [F28Power to enter business premises under a warrant: Article 22(2) inspections].U.K.

(1)A judge of the High Court [F29shall] issue a warrant if satisfied, on an application made to the High Court in accordance with rules of court by the [F30OFT, that]

[F31(a) the Commission has requested the OFT 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)[F32An Article 22(2) inspection] is being obstructed if—

(a)an authorised officer of the [F33OFT] has attempted to enter [F34any business] premises but has been unable to do so;

(b)the officer has produced his authorisation to the undertaking, or association of undertakings, concerned; and

(c)there are reasonable grounds for suspecting that there are [F35on any business premises] books or records [F36on the premises] which the officer has power to examine.

(3)[F37An Article 22(2) inspection] is also being obstructed if—

(a)there are reasonable grounds for suspecting that there are [F38on any business premises] books or records [F39on the premises] which an authorised officer of the [F33OFT] has power to examine;

(b)the officer has produced his authorisation to the undertaking, or association of undertakings, and has required production of the books or records; and

(c)the books and records have not been produced as required.

(4)[F40An Article 22(2) inspection] is likely to be obstructed if—

(a)there are reasonable grounds for suspecting that there are [F41on any business premises] books or records [F42on the premises]which an authorised officer of the [F33OFT] has power to examine; and

(b)there are also reasonable grounds for suspecting that, if the officer attempted to exercise his power to examine any of the books or records, they would not be produced but would be concealed, removed, tampered with or destroyed.

[F43(5)A warrant under this section shall authorise a named authorised officer of the OFT and any other authorised officer of the OFT, 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 OFT 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 OFT has power to seal, for the period and to the extent necessary for the inspection.]

[F44(5A)A warrant under this section may authorise persons specified in the warrant to accompany the named authorised officer who is executing it.]

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

(7)On leaving any premises which he has entered by virtue of the warrant the [F45named 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.

(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.

[F46(10) In this section—

  • “business premises” means any premises of an undertaking or association of undertakings which an authorised officer of the OFT 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.]

Textual Amendments

F30Words in s. 63(1) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(48)(a); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F33Words in s. 63(2)-(4) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(48)(b); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

64 Entry of premises under sections 62[F47, 62A] and 63: supplementary.U.K.

(1)A warrant issued under section 62[F48, 62A] or 63 must indicate—

(a)the subject matter and purpose of the [F49inspection];

(b)the nature of the offence created by section 65.

(2)The powers conferred by section 62[F50, 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—

  • [F51“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;]

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

Textual Amendments

65 Offences.U.K.

(1)A person is guilty of an offence if he intentionally obstructs any person in the exercise of his powers under a warrant issued under section 62[F52, 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.

Textual Amendments

[F5365APrivileged communications: Article 22(2) inspectionsU.K.

(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.]

Textual Amendments

[F5365BUse of statements in prosecution: Article 22(2) inspectionsU.K.

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.]

Textual Amendments