SCHEDULES
SCHEDULE 1 Exclusions: Mergers and Concentrations
Part I Mergers
Enterprises ceasing to be distinct: the Chapter I prohibition
1
1
To the extent to which an agreement (either on its own or when taken together with another agreement) results, or if carried out would result, in any two enterprises ceasing to be distinct enterprises for the purposes of F121Part V of the M1Fair Trading Act 1973 (“the 1973 Act”)F121Part 3 of the Enterprise Act 2002 (“the 2002 Act”), the Chapter I prohibition does not apply to the agreement.
2
The exclusion provided by sub-paragraph (1) extends to any provision directly related and necessary to the implementation of the merger provisions.
3
In sub-paragraph (2) “merger provisions” means the provisions of the agreement which cause, or if carried out would cause, the agreement to have the result mentioned in sub-paragraph (1).
4
F122Section 65 of the 1973 ActF122Section 26 of the 2002 Act applies for the purposes of this paragraph as if—
a
in subsection (3) (circumstances in which a person or group of persons may be treated as having control of an enterprise), and
b
in subsection (4) (circumstances in which a person or group of persons may be treated as bringing an enterprise under their control),
for “may” there were substituted “
must
”
.
Enterprises ceasing to be distinct: the Chapter II prohibition
2
1
To the extent to which conduct (either on its own or when taken together with other conduct)—
a
b
is directly related and necessary to the attainment of the result mentioned in paragraph (a),
the Chapter II prohibition does not apply to that conduct.
2
Transfer of a newspaper or of newspaper assets
F943
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Withdrawal of the paragraph 1 exclusion
C14
1
The exclusion provided by paragraph 1 does not apply to a particular agreement if the F151CMA gives a direction under this paragraph to that effect.
2
3
The F151CMA may give a direction under this paragraph only as provided in sub-paragraph (4) or (5).
4
If at the end of such period as may be specified in rules under section 51 a person has failed, without reasonable excuse, to comply with a requirement imposed under sub-paragraph (2), the F151CMA may give a direction under this paragraph.
5
The F151CMA may also give a direction under this paragraph if—
F104a
it considers that the agreement will, if not excluded, infringe the Chapter I prohibition; and
b
the agreement is not a protected agreement.
6
F105For the purposes of sub-paragraph (5), an individual exemption is unconditional if no conditions or obligations are imposed in respect of it under section 4(3)(a).
7
A direction under this paragraph—
a
must be in writing;
b
may be made so as to have effect from a date specified in the direction (which may not be earlier than the date on which it is given).
Protected agreements
C6C5C115
An agreement is a protected agreement for the purposes of paragraph 4 if—
F47a
b
the F152CMA or (as the case may be) the Secretary of State has made a reference F153... under section 22, 33, 45 or 62 of the 2002 Act in connection with the agreement and F154the CMA has found that the agreement has given rise to, or would if carried out give rise to, a relevant merger situation or (as the case may be) a special merger situation;
c
the agreement does not fall within paragraph (a) or (b) but has given rise to, or would if carried out give rise to, enterprises to which it relates being regarded under section 26 of the 2002 Act as ceasing to be distinct enterprises (otherwise than as the result of subsection (3) or (4)(b) of that section); or
d
the F152CMA has made a reference F153... under section 32 of the Water Industry Act 1991 in connection with the agreement and F154the CMA has found that the agreement has given rise to, or would if carried out give rise to, a merger of any two or more water enterprises of the kind to which that section applies.
Part II Concentrations subject to EC controls
6
1
To the extent to which an agreement (either on its own or when taken together with another agreement) gives rise to, or would if carried out give rise to, a concentration, the Chapter I prohibition does not apply to the agreement if the Merger Regulation gives the Commission exclusive jurisdiction in the matter.
2
To the extent to which conduct (either on its own or when taken together with other conduct) gives rise to, or would if pursued give rise to, a concentration, the Chapter II prohibition does not apply to the conduct if the Merger Regulation gives the Commission exclusive jurisdiction in the matter.
3
In this paragraph—
“concentration” means a concentration with a Community dimension within the meaning of Articles 1 and 3 of the Merger Regulation; and
F106“Merger Regulation” means Council Regulation (EC) No 139/2004 of 20th January 2004 on the control of concentrations between undertakings.
SCHEDULE 2 Exclusions: Other Competition Scrutiny
Part I Financial Services
F138...
1
1
The Financial Services Act 1986 is amended as follows.
2
For section 125 (effect of the M2Restrictive Trade Practices Act 1976), substitute—
125 The Competition Act 1998: Chapter I prohibition.
1
The Chapter I prohibition does not apply to an agreement for the constitution of—
a
a recognised self-regulating organisation,
b
a recognised investment exchange, or
c
a recognised clearing house,
to the extent to which the agreement relates to the regulating provisions of the body concerned.
2
Subject to subsection (3) below, the Chapter I prohibition does not apply to an agreement for the constitution of—
a
a self-regulating organisation,
b
an investment exchange, or
c
a clearing house,
to the extent to which the agreement relates to the regulating provisions of the body concerned.
3
The exclusion provided by subsection (2) above applies only if—
a
the body has applied for a recognition order in accordance with the provisions of this Act; and
b
the application has not been determined.
4
The Chapter I prohibition does not apply to a decision made by—
a
a recognised self-regulating organisation,
b
a recognised investment exchange, or
c
a recognised clearing house,
to the extent to which the decision relates to any of that body’s regulating provisions or specified practices.
5
The Chapter I prohibition does not apply to the specified practices of—
a
a recognised self-regulating organisation, a recognised investment exchange or a recognised clearing house; or
b
a person who is subject to—
i
the rules of one of those bodies, or
ii
the statements of principle, rules, regulations or codes of practice made by a designated agency in the exercise of functions transferred to it by a delegation order.
6
The Chapter I prohibition does not apply to any agreement the parties to which consist of or include—
a
a recognised self-regulating organisation, a recognised investment exchange or a recognised clearing house; or
b
a person who is subject to—
i
the rules of one of those bodies, or
ii
the statements of principle, rules, regulations or codes of practice made by a designated agency in the exercise of functions transferred to it by a delegation order,
to the extent to which the agreement consists of provisions the inclusion of which is required or contemplated by any of the body’s regulating provisions or specified practices or by the statements of principle, rules, regulations or codes of practice of the agency.
7
The Chapter I prohibition does not apply to—
a
any clearing arrangements; or
b
any agreement between a recognised investment exchange and a recognised clearing house, to the extent to which the agreement consists of provisions the inclusion of which in the agreement is required or contemplated by any clearing arrangements.
8
If the recognition order in respect of a body of the kind mentioned in subsection (1)(a), (b) or (c) above is revoked, subsections (1) and (4) to (7) above are to have effect as if that body had continued to be recognised until the end of the period of six months beginning with the day on which the revocation took effect.
9
In this section—
“the Chapter I prohibition” means the prohibition imposed by section 2(1) of the Competition Act 1998;
“regulating provisions” means—
- a
in relation to a self-regulating organisation, any rules made, or guidance issued, by the organisation;
- b
in relation to an investment exchange, any rules made, or guidance issued, by the exchange;
- c
in relation to a clearing house, any rules made, or guidance issued, by the clearing house;
“specified practices” means—
- a
in the case of a recognised self-regulating organisation, the practices mentioned in section 119(2)(a)(ii) and (iii) above (read with section 119(5) and (6)(a));
- b
in the case of a recognised investment exchange, the practices mentioned in section 119(2)(b)(ii) and (iii) above (read with section 119(5) and (6)(b));
- c
in the case of a recognised clearing house, the practices mentioned in section 119(2)(c)(ii) and (iii) above (read with section 119(5) and (6)(b));
- d
in the case of a person who is subject to the statements of principle, rules, regulations or codes of practice issued or made by a designated agency in the exercise of functions transferred to it by a delegation order, the practices mentioned in section 121(2)(c) above (read with section 121(4));
and expressions used in this section which are also used in Part I of the Competition Act 1998 are to be interpreted in the same way as for the purposes of that Part of that Act.
3
Omit section 126 (certain practices not to constitute anti-competitive practices for the purposes of the M3Competition Act 1980).
4
For section 127 (modification of statutory provisions in relation to recognised professional bodies), substitute—
127 Application of Competition Act 1998 in relation to recognised professional bodies: Chapter I prohibition.
1
This section applies to—
a
any agreement for the constitution of a recognised professional body to the extent to which it relates to the rules or guidance of that body relating to the carrying on of investment business by persons certified by it (“investment business rules”); and
b
any other agreement, the parties to which consist of or include—
i
a recognised professional body,
ii
a person certified by such a body, or
iii
a member of such a body,
and which contains a provision required or contemplated by that body’s investment business rules.
2
If it appears to the Treasury, in relation to some or all of the provisions of an agreement to which this section applies—
a
that the provisions in question do not have, and are not intended or likely to have, to any significant extent the effect of restricting, distorting or preventing competition; or
b
that the effect of restricting, distorting or preventing competition which the provisions in question do have, or are intended or are likely to have, is not greater than is necessary for the protection of investors,
the Treasury may make a declaration to that effect.
3
If the Treasury make a declaration under this section, the Chapter I prohibition does not apply to the agreement to the extent to which the agreement consists of provisions to which the declaration relates.
4
If the Treasury are satisfied that there has been a material change of circumstances, they may—
a
revoke a declaration made under this section, if they consider that the grounds on which it was made no longer exist;
b
vary such a declaration, if they consider that there are grounds for making a different declaration; or
c
make a declaration even though they have notified the Director of their intention not to do so.
5
If the Treasury make, vary or revoke a declaration under this section they must notify the Director of their decision.
6
If the Director proposes to exercise any Chapter III powers in respect of any provisions of an agreement to which this section applies, he must—
a
notify the Treasury of his intention to do so; and
b
give the Treasury particulars of the agreement and such other information—
i
as he considers will assist the Treasury to decide whether to exercise their powers under this section; or
ii
as the Treasury may request.
7
The Director may not exercise his Chapter III powers in respect of any provisions of an agreement to which this section applies, unless the Treasury—
a
have notified him that they have not made a declaration in respect of those provisions under this section and that they do not intend to make such a declaration; or
b
have revoked a declaration under this section and a period of six months beginning with the date on which the revocation took effect has expired.
8
A declaration under this section ceases to have effect if the agreement to which it relates ceases to be one to which this section applies.
9
In this section—
“the Chapter I prohibition” means the prohibition imposed by section 2(1) of the Competition Act 1998,
“Chapter III powers” means the powers given to the Director by Chapter III of Part I of that Act so far as they relate to the Chapter I prohibition, and
expressions used in this section which are also used in Part I of the Competition Act 1998 are to be interpreted in the same way as for the purposes of that Part of that Act.
10
In this section references to an agreement are to be read as applying equally to, or in relation to, a decision or concerted practice.
11
In the application of this section to decisions and concerted practices, references to provisions of an agreement are to be read as references to elements of a decision or concerted practice.
F98Part II Companies
Sch. 2 Pt. 2 ceased to have effect (1.5.2004) by virtue of The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 1 para. 49(2) (with reg. 6(2))
The Companies Act 1989 (c.40)
2
1
The Companies Act 1989 is amended as follows.
2
In Schedule 14, for paragraph 9 (exclusion of certain agreements from the M4Restrictive Trade Practices Act 1976), substitute—
The Competition Act 1998
9
1
The Chapter I prohibition does not apply to an agreement for the constitution of a recognised supervisory or qualifying body to the extent to which it relates to—
a
rules of, or guidance issued by, the body; and
b
incidental matters connected with the rules or guidance.
2
The Chapter I prohibition does not apply to an agreement the parties to which consist of or include—
a
a recognised supervisory or qualifying body, or
b
any person mentioned in paragraph 3(5) or (6) above,
to the extent to which the agreement consists of provisions the inclusion of which in the agreement is required or contemplated by the rules or guidance of that body.
3
The Chapter I prohibition does not apply to the practices mentioned in paragraph 3(4)(a) and (b) above.
4
Where a recognition order is revoked, sub-paragraphs (1) to (3) above are to continue to apply for a period of six months beginning with the day on which the revocation takes effect, as if the order were still in force.
5
In this paragraph—
a
“the Chapter I prohibition” means the prohibition imposed by section 2(1) of the Competition Act 1998,
b
references to an agreement are to be read as applying equally to, or in relation to, a decision or concerted practice,
and expressions used in this paragraph which are also used in Part I of the Competition Act 1998 are to be interpreted in the same way as for the purposes of that Part of that Act.
6
In the application of this paragraph to decisions and concerted practices, references to provisions of an agreement are to be read as references to elements of a decision or concerted practice.
The Companies (Northern Ireland) Order 1990 (S.I. 1990/593 (N.I. 5))
F1253
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Part III Broadcasting
The Broadcasting Act 1990 (c.42)
4
1
The Broadcasting Act 1990 is amended as follows.
2
In section 194A (which modifies the M5Restrictive Trade Practices Act 1976 in its application to agreements relating to Channel 3 news provision), for subsections (2) to (6), substitute—
2
If, having sought the advice of the Director, it appears to the Secretary of State, in relation to some or all of the provisions of a relevant agreement, that the conditions mentioned in subsection (3) are satisfied, he may make a declaration to that effect.
3
The conditions are that—
a
the provisions in question do not have, and are not intended or likely to have, to any significant extent the effect of restricting, distorting or preventing competition; or
b
the effect of restricting, distorting or preventing competition which the provisions in question do have or are intended or are likely to have, is not greater than is necessary—
i
in the case of a relevant agreement falling within subsection (1)(a), for securing the appointment by holders of regional Channel 3 licences of a single body corporate to be the appointed news provider for the purposes of section 31(2), or
ii
in the case of a relevant agreement falling within subsection (1)(b), for compliance by them with conditions included in their licences by virtue of section 31(1) and (2).
4
If the Secretary of State makes a declaration under this section, the Chapter I prohibition does not apply to the agreement to the extent to which the agreement consists of provisions to which the declaration relates.
5
If the Secretary of State is satisfied that there has been a material change of circumstances, he may—
a
revoke a declaration made under this section, if he considers that the grounds on which it was made no longer exist;
b
vary such a declaration, if he considers that there are grounds for making a different declaration; or
c
make a declaration, even though he has notified the Director of his intention not to do so.
6
If the Secretary of State makes, varies or revokes a declaration under this section, he must notify the Director of his decision.
7
The Director may not exercise any Chapter III powers in respect of a relevant agreement, unless—
a
he has notified the Secretary of State of his intention to do so; and
b
the Secretary of State—
i
has notified the Director that he has not made a declaration in respect of the agreement, or provisions of the agreement, under this section and that he does not intend to make such a declaration; or
ii
has revoked a declaration under this section and a period of six months beginning with the date on which the revocation took effect has expired.
8
If the Director proposes to exercise any Chapter III powers in respect of a relevant agreement, he must give the Secretary of State particulars of the agreement and such other information—
a
as he considers will assist the Secretary of State to decide whether to exercise his powers under this section; or
b
as the Secretary of State may request.
9
In this section—
“the Chapter I prohibition” means the prohibition imposed by section 2(1) of the Competition Act 1998;
“Chapter III powers” means the powers given to the Director by Chapter III of Part I of that Act so far as they relate to the Chapter I prohibition;
“Director” means the Director General of Fair Trading;
“regional Channel 3 licence” has the same meaning as in Part I;
and expressions used in this section which are also used in Part I of the Competition Act 1998 are to be interpreted in the same way as for the purposes of that Part of that Act.
10
In this section references to an agreement are to be read as applying equally to, or in relation to, a decision or concerted practice.
11
In the application of this section to decisions and concerted practices, references to provisions of an agreement are to be read as references to elements of a decision or concerted practice.
Networking arrangements under the Broadcasting Act 1990 (c.42)
5
F951
The Chapter I prohibition does not apply in respect of any networking arrangements to the extent that they—
a
have been approved for the purposes of licence conditions imposed under section 291 of the Communications Act 2003; or
b
are arrangements that have been considered under Schedule 4 to the Broadcasting Act 1990 and fall to be treated as so approved;
nor does that prohibition apply in respect of things done with a view to arrangements being entered into or approved to the extent that those things have effect for purposes that are directly related to, and necessary for compliance with, conditions so imposed.
2
F86OFCOM must publish a list of the networking arrangements which in their opinion are excluded from the Chapter I prohibition by virtue of sub-paragraph (1).
3
F87OFCOM must—
a
consult the F155CMA before publishing the list, and
b
publish the list in such a way as they think most suitable for bringing it to the attention of persons who, in their opinion, would be affected by, or likely to have an interest in, it.
F964
In this paragraph “networking arrangements” has the same meaning as in Part 3 of the Communications Act 2003.
F99Part IV Environmental Protection
Sch. 2 Pt. 4 ceased to have effect (1.5.2004) by virtue of The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 1 para. 49(3) (with reg. 6(2))
Producer responsibility obligations
6
1
The M6Environment Act 1995 is amended as follows.
2
In section 94(1) (supplementary provisions about regulations imposing producer responsibility obligations on prescribed persons), after paragraph (o), insert—
oa
the exclusion or modification of any provision of Part I of the Competition Act 1998 in relation to exemption schemes or in relation to any agreement, decision or concerted practice at least one of the parties to which is an operator of an exemption scheme;
3
After section 94(6), insert—
6A
Expressions used in paragraph (oa) of subsection (1) above which are also used in Part I of the Competition Act 1998 are to be interpreted in the same way as for the purposes of that Part of that Act.
4
After section 94, insert—
94AProducer responsibility: competition matters.
1
For the purposes of this section, the relevant paragraphs are paragraphs (n), (o), (oa) and (ya) of section 94(1) above.
2
Regulations made by virtue of any of the relevant paragraphs may include transitional provision in respect of agreements or exemption schemes—
a
in respect of which information has been required for the purposes of competition scrutiny under any regulation made by virtue of paragraph (ya);
b
which are being, or have been, considered for the purposes of competition scrutiny under any regulation made by virtue of paragraph (n) or (ya); or
3
Subsections (2), (3), (5) to (7) and (10) of section 93 above do not apply to a statutory instrument which contains only regulations made by virtue of any of the relevant paragraphs or subsection (2) above.
4
Such a statutory instrument shall be subject to annulment in pursuance of a resolution of either House of Parliament.
SCHEDULE 3 General Exclusions
Planning obligations
1
1
The Chapter I prohibition does not apply to an agreement—
a
to the extent to which it is a planning obligation;
b
which is made under section 75 (agreements regulating development or use of land) or 246 (agreements relating to Crown land) of the M9Town and Country Planning (Scotland) Act 1997; or
2
In sub-paragraph (1)(a), “planning obligation” means—
a
a planning obligation for the purposes of section 106 of the M11Town and Country Planning Act 1990; or
b
a planning obligation for the purposes of section 299A of that Act.
Section 21(2) agreements
2
F1281
The Chapter I prohibition does not apply to an agreement in respect of which a direction under section 21(2) of the M12Restrictive Trade Practices Act 1976 is in force immediately before the coming into force of section 2 (“a section 21(2) agreement”).
2
If a material variation is made to a section 21(2) agreement, sub-paragraph (1) ceases to apply to the agreement on the coming into force of the variation.
3
Sub-paragraph (1) does not apply to a particular section 21(2) agreement if the F13OFT gives a direction under this paragraph to that effect.
4
5
The F13OFT may give a direction under this paragraph only as provided in sub-paragraph (6) or (7).
6
If at the end of such period as may be specified in rules under section 51 a person has failed, without reasonable excuse, to comply with a requirement imposed under sub-paragraph (4), the F13OFT may give a direction under this paragraph.
7
a
that the agreement will, if not excluded, infringe the Chapter I prohibition; and
b
that F15the OFT isnot likely to grant it an unconditional individual exemption.
8
For the purposes of sub-paragraph (7) an individual exemption is unconditional if no conditions or obligations are imposed in respect of it under section 4(3)(a).
9
A direction under this paragraph—
a
must be in writing;
b
may be made so as to have effect from a date specified in the direction (which may not be earlier than the date on which it is given).
EEA Regulated Markets
3
1
The Chapter I prohibition does not apply to an agreement for the constitution of an EEA regulated market to the extent to which the agreement relates to any of the rules made, or guidance issued, by that market.
2
The Chapter I prohibition does not apply to a decision made by an EEA regulated market, to the extent to which the decision relates to any of the market’s regulating provisions.
3
The Chapter I prohibition does not apply to—
a
any practices of an EEA regulated market; or
b
any practices which are trading practices in relation to an EEA regulated market.
4
The Chapter I prohibition does not apply to an agreement the parties to which are or include—
a
an EEA regulated market, or
b
a person who is subject to the rules of that market,
to the extent to which the agreement consists of provisions the inclusion of which is required or contemplated by the regulating provisions of that market.
5
In this paragraph—
“EEA regulated market” is a market which—
- a
is listed by an EEA State other than the United Kingdom pursuant to F130Article 47 of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments; and
- b
operates without any requirement that a person dealing on the market should have a physical presence in the EEA State from which any trading facilities are provided or on any trading floor that the market may have;
- a
“EEA State” means a State which is a contracting party to the EEA Agreement;
“regulating provisions”, in relation to an EEA regulated market, means—
- a
rules made, or guidance issued, by that market,
- b
practices of that market, or
- c
practices which, in relation to that market, are trading practices;
- a
“trading practices”, in relation to an EEA regulated market, means practices of persons who are subject to the rules made by that market, and—
- a
which relate to business in respect of which those persons are subject to the rules of that market, and which are required or contemplated by those rules or by guidance issued by that market; or
- b
which are otherwise attributable to the conduct of that market as such.
- a
Services of general economic interest etc.
4
Neither the Chapter I prohibition nor the Chapter II prohibition applies to an undertaking entrusted with the operation of services of general economic interest or having the character of a revenue-producing monopoly in so far as the prohibition would obstruct the performance, in law or in fact, of the particular tasks assigned to that undertaking.
Compliance with legal requirements
5
1
The Chapter I prohibition does not apply to an agreement to the extent to which it is made in order to comply with a legal requirement.
2
The Chapter II prohibition does not apply to conduct to the extent to which it is engaged in an order to comply with a legal requirement.
3
In this paragraph “legal requirement” means a requirement—
a
imposed by or under any enactment in force in the United Kingdom;
b
imposed by or under the Treaty or the EEA Agreement and having legal effect in the United Kingdom without further enactment; or
c
imposed by or under the law in force in another Member State and having legal effect in the United Kingdom.
Avoidance of conflict with international obligations
6
1
If the Secretary of State is satisfied that, in order to avoid a conflict between provisions of this Part and an international obligation of the United Kingdom, it would be appropriate for the Chapter I prohibition not to apply to—
a
a particular agreement, or
b
any agreement of a particular description,
he may by order exclude the agreement, or agreements of that description, from the Chapter I prohibition.
2
An order under sub-paragraph (1) may make provision for the exclusion of the agreement or agreements to which the order applies, or of such of them as may be specified, only in specified circumstances.
3
An order under sub-paragraph (1) may also provide that the Chapter I prohibition is to be deemed never to have applied in relation to the agreement or agreements, or in relation to such of them as may be specified.
4
If the Secretary of State is satisfied that, in order to avoid a conflict between provisions of this Part and an international obligation of the United Kingdom, it would be appropriate for the Chapter II prohibition not to apply in particular circumstances, he may by order provide for it not to apply in such circumstances as may be specified.
5
An order under sub-paragraph (4) may provide that the Chapter II prohibition is to be deemed never to have applied in relation to specified conduct.
6
An international arrangement relating to civil aviation and designated by an order made by the Secretary of State is to be treated as an international obligation for the purposes of this paragraph.
7
In this paragraph and paragraph 7 “specified” means specified in the order.
Public policy
7
1
If the Secretary of State is satisfied that there are exceptional and compelling reasons of public policy why the Chapter I prohibition ought not to apply to—
a
a particular agreement, or
b
any agreement of a particular description,
he may by order exclude the agreement, or agreements of that description, from the Chapter I prohibition.
2
An order under sub-paragraph (1) may make provision for the exclusion of the agreement or agreements to which the order applies, or of such of them as may be specified, only in specified circumstances.
3
An order under sub-paragraph (1) may also provide that the Chapter I prohibition is to be deemed never to have applied in relation to the agreement or agreements, or in relation to such of them as may be specified.
4
If the Secretary of State is satisfied that there are exceptional and compelling reasons of public policy why the Chapter II prohibition ought not to apply in particular circumstances, he may by order provide for it not to apply in such circumstances as may be specified.
5
An order under sub-paragraph (4) may provide that the Chapter II prohibition is to be deemed never to have applied in relation to specified conduct.
Coal and steel
8
1
The Chapter I prohibition does not apply to an agreement which relates to a coal or steel product to the extent to which the ECSC Treaty gives the Commission exclusive jurisdiction in the matter.
2
Sub-paragraph (1) ceases to have effect on the date on which the ECSC Treaty expires (“the expiry date”).
3
The Chapter II prohibition does not apply to conduct which relates to a coal or steel product to the extent to which the ECSC Treaty gives the Commission exclusive jurisdiction in the matter.
4
Sub-paragraph (3) ceases to have effect on the expiry date.
5
In this paragraph—
“coal or steel product” means any product of a kind listed in Annex I to the ECSC Treaty; and
“ECSC Treaty” means the Treaty establishing the European Coal and Steel Community.
Agricultural products
9
1
The Chapter I prohibition does not apply to an agreement to the extent to which it relates to production of or trade in an agricultural product and—
a
forms an integral part of a national market organisation;
b
is necessary for the attainment of the objectives set out in F132Article 39 of the Treaty on the Functioning of the European Union of the Treaty; or
c
is an agreement of farmers or farmers’ associations (or associations of such associations) belonging to a single member State which concerns—
i
the production or sale of agricultural products, or
ii
the use of joint facilities for the storage, treatment or processing of agricultural products,
and under which there is no obligation to charge identical prices.
2
If the Commission determines that an agreement does not fulfil the conditions specified by the provision for agricultural products for exclusion from F133Article 101(1), the exclusion provided by this paragraph (“the agriculture exclusion”) is to be treated as ceasing to apply to the agreement on the date of the decision.
3
The agriculture exclusion does not apply to a particular agreement if the F156CMA gives a direction under this paragraph to that effect.
4
5
The F156CMA may give a direction under this paragraph only as provided in sub-paragraph (6) or (7).
6
If at the end of such period as may be specified in rules under section 51 a person has failed, without reasonable excuse, to comply with a requirement imposed under sub-paragraph (4), the F156CMA may give a direction under this paragraph.
7
The F156CMA may also give a direction under this paragraph if F17it considers that an agreement (whether or not F17it considers that it infringes the Chapter I prohibition) is likely, or is intended, substantially and unjustifiably to prevent, restrict or distort competition in relation to an agricultural product.
8
A direction under this paragraph—
a
must be in writing;
b
may be made so as to have effect from a date specified in the direction (which may not be earlier than the date on which it is given).
9
In this paragraph—
“agricultural product” means any product of a kind listed in F107Annex I to the Treaty; and
“provision for agricultural products” means Council Regulation (EEC) No. 26/62 of 4th April 1962 applying certain rules of competition to production of and trade in agricultural products.
F8SCHEDULE 4 Professional Rules
Sch. 4 repealed (1.4.2003) by Enterprise Act 2002 (c. 40), ss. 207, 279, Sch. 26 (with Sch. 24 paras. 2022); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)
F8Part I Exclusion
F8 General
F81
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8 Designated rules
F82
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8 Application for designation
F83
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8 Alterations
F84
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8 Reviewing the list
F85
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8 Removal from the list
F86
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8 Inspection
F87
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8Part II Professional Services
F8 Legal
F88
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8 Medical
F89
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8 Dental
F810
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8 Ophthalmic
F811
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8 Veterinary
F812
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8 Nursing
F813
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8 Midwifery
F814
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8 Physiotherapy
F815
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8 Chiropody
F816
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8 Architectural
F817
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8 Accounting and auditing
F818
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8 Insolvency
F819
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8 Patent agency
F820
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F821
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8 Parliamentary agency
F822
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8 Surveying
F823
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8 Engineering and technology et ceteralaetc.
F824
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8 Educational
F825
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8 Religious
F826
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C2I1F100SCHEDULE 5 Notification under Chapter I: Procedure
Sch. 5 partly in force; Sch. 5 not in force at Royal Assent, see s. 431; Sch. 5 partly in force at 1.3.2000 by S.I. 2000/344, art. 2, Sch.
Sch. 5 ceased to have effect (1.5.2004) by virtue of The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 1 para. 51 (with reg. 6(2))
Sch. 5 applied (with modifications) (1.3.2000) by S.I. 2000/263, art. 8
Terms used
1
In this Schedule—
“applicant” means the person making an application to which this Schedule applies;“application” means an application under section 13 or an application under section 14;“application for guidance” means an application under section 13;“application for a decision” means an application under section 14;“rules” means rules made by theF9OFTunder section 51; and“specified” means specified in the rules.
General rules about applications
2
1
An application must be made in accordance with rules.
2
A party to an agreement who makes an application must take all reasonable steps to notify all other parties to the agreement of whom he is aware—
a
that the application has been made; and
b
as to whether it is for guidance or a decision.
3
Notification under sub-paragraph (2) must be in the specified manner.
Preliminary investigation
3
1
If, after a preliminary investigation of an application, the F9OFT considers that it is likely—
a
that the agreement concerned will infringe the Chapter I prohibition, and
b
that it would not be appropriate to grant the agreement an individual exemption,
F18it may make a decision (“a provisional decision”) under this paragraph.
2
If the F9OFT makes a provisional decision—
b
section 13(4) or (as the case may be) section 14(4) is to be taken as never having applied.
3
When making a provisional decision, the F9OFT must follow such procedure as may be specified.
4
A provisional decision does not affect the final determination of an application.
5
If the F9OFT has given notice to the applicant under sub-paragraph (2) in respect of an application for a decision, he may continue with the application under section 14.
Procedure on application for guidance
4
When determining an application for guidance, the F9OFT must follow such procedure as may be specified.
Procedure on application for a decision
5
1
When determining an application for a decision, the F9OFT must follow such procedure as may be specified.
2
The F9OFT must arrange for the application to be published in such a way as F19it thinks most suitable for F20bringing the application to the attention of those likely to be affected by it, unless F21the OFT is satisfied that it will be sufficient F22... to seek information from one or more particular persons other than the applicant.
3
Publication of decisions
6
Delay by the F9OFT
7
1
2
The court may give such directions to the F9OFT as it considers appropriate for securing that the application is determined without unnecessary further delay.
F101SCHEDULE 6 Notification under Chapter II: Procedure
Sch. 6 ceased to have effect (1.5.2004) by virtue of The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 1 para. 51 (with reg. 6(2))
Terms used
1
In this Schedule—
“applicant” means the person making an application to which this Schedule applies;“application” means an application under section 21 or an application under section 22;“application for guidance” means an application under section 21;“application for a decision” means an application under section 22;“other party”, in relation to conduct of two or more persons, means one of those persons other than the applicant;“rules” means rules made by theF10OFTunder section 51; and“specified” means specified in the rules.
General rules about applications
C32
1
An application must be made in accordance with rules.
2
If the conduct to which an application relates is conduct of two or more persons, the applicant must take all reasonable steps to notify all of the other parties of whom he is aware—
a
that the application has been made; and
b
as to whether it is for guidance or a decision.
3
Notification under sub-paragraph (2) must be in the specified manner.
Preliminary investigation
3
1
2
3
When making a provisional decision, the F10OFT must follow such procedure as may be specified.
4
A provisional decision does not affect the final determination of an application.
5
If the F10OFT has given notice to the applicant under sub-paragraph (2) in respect of an application for a decision, he may continue with the application under section 22.
Procedure on application for guidance
4
When determining an application for guidance, the F10OFT must follow such procedure as may be specified.
Procedure on application for a decision
5
1
When determining an application for a decision, the F10OFT must follow such procedure as may be specified.
2
The F10OFT must arrange for the application to be published in such a way as F26it thinks most suitable for F27bringing the application to the attention of those likely to be affected by it, unless F28the OFT is satisfied that it will be sufficient F30... to seek information from one or more particular persons other than the applicant.
3
Publication of decisions
6
Delay by the F10OFT
7
1
2
The court may give such directions to the F10OFT as it considers appropriate for securing that the application is determined without unnecessary further delay.
F103SCHEDULE 6ACOMMITMENTS
Sch. 6A inserted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 1 para. 52
PART 1PROCEDURAL REQUIREMENTS FOR THE ACCEPTANCE AND VARIATION OF COMMITMENTS
1
Paragraph 2 applies where the F157CMA proposes to—
a
accept any commitments under section 31A; or
b
accept any variation of such commitments other than a variation which is not material in any respect.
2
1
Before accepting the commitments or variation, the F158CMA must—
a
give notice under this paragraph; and
b
consider any representations made in accordance with the notice and not withdrawn.
2
A notice under this paragraph must state—
a
that the F159CMA proposes to accept the commitments or variation;
b
the purpose of the commitments or variation and the way in which the commitments or variation would meet the F160CMA's competition concerns;
c
any other facts which the F159CMA considers are relevant to the acceptance or variation of the commitments; and
d
the period within which representations may be made in relation to the proposed commitments or variation.
3
The period stated for the purposes of sub-paragraph (2)(d) must be at least 11 working days starting with the date the notice is given or, if that date is not a working day, with the date of the first working day after that date.
3
1
The F161CMA must not accept the commitments or variation of which notice has been given under paragraph 2(1) with modifications unless it—
a
gives notice under this paragraph of the proposed modifications; and
b
considers any representations made in accordance with the notice and not withdrawn.
2
A notice under this paragraph must state—
a
the proposed modifications;
b
the reasons for them; and
c
the period within which representations may be made in relation to the proposed modifications.
3
The period stated for the purposes of sub-paragraph (2)(c) must be at least 6 working days starting with the date the notice is given or, if that date is not a working day, with the date of the first working day after that date.
4
If, after giving notice under paragraph 2 or 3 the F162CMA decides—
a
not to accept the commitments or variation concerned, and
b
not to proceed by virtue of paragraph 5 or 6,
the F162CMA must give notice that it has so decided.
5
The requirements of paragraph 3 shall not apply if the F163CMA —
a
has already given notice under paragraph 2 but not under paragraph 3; and
b
considers that the modifications which are now being proposed are not material in any respect.
6
The requirements of paragraph 3 shall not apply if the F164CMA —
a
has already given notices under paragraphs 2 and 3; and
b
considers that the further modifications which are now being proposed are not material in any respect or do not differ in any material respect from the modifications in relation to which notice was last given under paragraph 3.
7
8
A notice under paragraph 2 or 3 shall be given by—
a
sending a copy of the notice to such person or persons as the F166CMA considers appropriate for the purpose of bringing the matter to which it relates to the attention of those likely to be affected by it; or
b
publishing the notice in such manner as the F166CMA considers appropriate for the purpose of bringing the matter to which it relates to the attention of those likely to be affected by it.
PART 2PROCEDURAL REQUIREMENTS FOR THE RELEASE OF COMMITMENTS
10
Paragraph 11 applies where the F167CMA proposes to release any commitments under section 31A.
11
1
Before releasing the commitments, the F168CMA must—
a
give notice under this paragraph;
b
send a copy of the notice to the person (or persons) who gave the commitments; and
c
consider any representations made in accordance with the notice and not withdrawn.
2
A notice under this paragraph must state—
a
the fact that a release is proposed;
b
the reasons for it; and
c
the period within which representations may be made in relation to the proposed release.
3
The period stated for the purposes of sub-paragraph (2)(c) must be at least 11 working days starting with the date the notice is given or, if that date is not a working day, with the date of the first working day after that date.
12
If after giving notice under paragraph 11 the F169CMA decides not to proceed with the release, it must—
a
give notice that it has so decided; and
b
send a copy of the notice to the person (or persons) who gave the commitments.
13
As soon as practicable after releasing the commitments, the F170CMA must—
a
publish the release in such manner as it considers appropriate; and
b
send a copy of the release to the person (or persons) who gave the commitments.
14
A notice under paragraph 11 or 12 shall be given by—
a
sending a copy of the notice to such other person or persons as the F171CMA considers appropriate for the purpose of bringing the matter to which it relates to the attention of those likely to be affected by it; or
b
publishing the notice in such manner as the F171CMA considers appropriate for the purpose of bringing the matter to which it relates to the attention of those likely to be affected by it.
F148SCHEDULE 7 The Competition Commission
Sch. 7 omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 222 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)
F148Part I General
F148 Interpretation
F1481
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F148 Membership of the Commission
F1482
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F148 Chairman and deputy chairmen
F1483
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F148 President
F1484
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F148 The Council
F1485
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F148 Term of office
F1486
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F148 Expenses, remuneration and pensions
F1487
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F148 The Commission’s powers
F1487A
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1488
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F148 Staff
F1489
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F148 Procedure
F14810
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F148 Application of seal and proof of instruments
F14811
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F148 Accounts
F14812
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F148Annual reports
F14812A
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F148 Status
F14813
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F148 Part II Performance of the Commission’s General Functions
F148 Interpretation
F14814
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F148 Discharge of certain functions by groups
F14815
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F148 Chairmen of groups
F14816
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F148 Replacement of member of group
F14817
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F148 Attendance of other members
F14818
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F148 Procedure
F14819
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F14819A
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F148 Effect of exercise of functions by group
F14820
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F148 Casting votes
F14821
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F148 Newspaper merger references
F14822
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F148Part III Appeals
F148 Interpretation
F14823
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F148 Training of appeal panel members
F14824
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F148 Acting President
F14825
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F148 Panel of tribunal chairmen
F14826
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F148 Constitution of tribunals
F14827
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F148Part IV Miscellaneous
F148 Disqualification of members for House of Commons
F14828
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F148 Disqualification of members for Northern Ireland Assembly
F14829
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F148Part V Transitional provisions
F148 Interpretation
F14830
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F148 Chairman
F14831
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F148 Deputy chairmen
F14832
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F148 Reporting panel members
F14833
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F148 Specialist panel members
F14834
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F148 Secretary
F14835
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F148 Council
F14836
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F149SCHEDULE 7Athe competition commission: procedural rules for mergers and market references etc.
Sch. 7A omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 223 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)
F1491
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1492
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1493
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1494
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1495
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1496
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1497
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SCHEDULE 8 Appeals
Part I General
Interpretation
F321
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
General procedure
2
1
C42
The notice of appeal must set out the grounds of appeal in sufficient detail to indicate—
a
under which provision of this Act the appeal is brought;
b
to what extent (if any) the appellant contends that the decision against, or with respect to which, the appeal is brought was based on an error of fact or was wrong in law; and
3
The F35Tribunal may give an appellant leave to amend the grounds of appeal identified in the notice of appeal.
F334
In this paragraph references to the Tribunal are to the Tribunal as constituted (in accordance with section 14 of the Enterprise Act 2002) for the purposes of the proceedings in question.
5
Nothing in this paragraph restricts the power under section 15 of the Enterprise Act 2002 (Tribunal rules) to make provision as to the manner of instituting proceedings before the Tribunal.
Decisions of the tribunal
3
F108A1
This paragraph applies to any appeal under section 46 or 47 other than—
a
an appeal under section 46 against, or with respect to, a decision of the kind specified in subsection (3)(g) or (h) of that section, and
b
an appeal under section 47(1)(b) or (c).
1
The F37Tribunal must determine the appeal on the merits by reference to the grounds of appeal set out in the notice of appeal.
2
The F37Tribunal may confirm or set aside the decision which is the subject of the appeal, or any part of it, and may—
a
remit the matter to the F173CMA ,
b
impose or revoke, or vary the amount of, a penalty,
c
d
3
4
If the F37Tribunal confirms the decision which is the subject of the appeal it may nevertheless set aside any finding of fact on which the decision was based.
F1023A
1
This paragraph applies to—
a
any appeal under section 46 against, or with respect to, a decision of the kind specified in subsection (3)(g) or (h) of that section, and
b
any appeal under section 47(1)(b) or (c).
2
The Tribunal must, by reference to the grounds of appeal set out in the notice of appeal, determine the appeal by applying the same principles as would be applied by a court on an application for judicial review.
3
The Tribunal may—
a
dismiss the appeal or quash the whole or part of the decision to which it relates; and
b
where it quashes the whole or part of that decision, remit the matter back to the F174CMA with a direction to reconsider and make a new decision in accordance with the ruling of the Tribunal.
F1863B
1
This paragraph applies to an appeal under section 49D(3).
2
The Tribunal must determine the appeal on the merits by reference to the grounds of appeal set out in the notice of appeal.
3
The Tribunal may—
a
approve the amount of costs which is the subject of the appeal, or
b
impose a requirement to pay costs of a different amount.
4
The Tribunal may also give such directions, or take such other steps, as the CMA could itself have given or taken.
5
A requirement imposed by the Tribunal under sub-paragraph (3)(b) has the same effect, and may be enforced in the same manner, as a requirement imposed by the CMA under section 49D.
F114
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Part II Rules
Registrar of Appeal Tribunals
F115
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Notice of appeal
F116
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Response to the appeal
F117
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Pre-hearing reviews and preliminary matters
F118
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Conduct of the hearing
F119
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Interest
F1110
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Fees
F1111
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Withdrawing an appeal
F1112
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Interim orders
F1113
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Miscellaneous
F1114
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F188SCHEDULE 8AFurther Provision about Claims in Respect of Loss or Damage Before a Court or the Tribunal
Part 1Interpretation
1
This Part of this Schedule contains definitions and other provisions about interpretation which apply for the purposes of this Schedule.
2Competition law etc
1
“Competition law” means—
a
the Chapter I prohibition,
b
the Chapter II prohibition,
c
the prohibition in Article 101(1), and
d
the prohibition in Article 102.
2
“Competition claim” means a claim in respect of loss or damage arising from an infringement of competition law (whatever the legal basis of the claim) which is made by or on behalf of—
a
the person who suffered the loss or damage, or
b
a person who has acquired that person’s right to make the claim (whether by operation of law or otherwise).
3
“Competition damages claim” means a competition claim to the extent that it is a claim for damages.
4
“Competition proceedings” means proceedings before a court or the Tribunal to the extent that they relate to a competition claim.
5
Where the context requires, references to an infringement of competition law and to loss or damage (however expressed) include an alleged infringement and alleged loss or damage.
3Competition authority etc
1
“Competition authority” means—
a
the CMA,
b
a regulator, so far as it exercises functions under Part 1 of this Act concurrently with the CMA,
c
the Commission, and
d
a member State competition authority.
2
A “member State competition authority” means an authority designated by a member State other than the United Kingdom, under Article 35 of the EC Competition Regulation, as being responsible for the application of Article 101 and Article 102 of the Treaty.
3
“Investigation materials”, in relation to a competition authority, means—
a
information prepared by a person (other than a competition authority) for the purpose of an investigation by the competition authority into an infringement of competition law;
b
information sent by the competition authority, during the course of such an investigation, to an undertaking which is the subject of the investigation;
c
a settlement submission which has been withdrawn.
4
Subsections (3) and (4) of section 58A apply for the purposes of determining when a decision of the CMA, a regulator or the Commission becomes “final”.
5
A decision of a member State competition authority becomes “final”—
a
when the time for appealing against it expires without an appeal having been brought, or
b
where an appeal has been brought against the decision, when—
i
the appeal and any further appeal in relation to the decision has been decided or has otherwise ended, and
ii
the time for appealing against the result of the appeal or further appeal has expired without another appeal having been brought.
6
Where the law of a member State other than the United Kingdom requires or enables a member State competition authority to bring proceedings before a court of the member State in relation to an infringement of Article 101(1) or Article 102, rather than making a decision itself in relation to the infringement—
a
references to an investigation by a competition authority into an infringement of competition law include such proceedings brought by the member State competition authority;
b
references to a competition authority closing an investigation include the termination of such proceedings by the member State competition authority or by another person, except where the competition authority’s investigation of the infringement continues after the proceedings terminate;
c
references to a decision of a competition authority include a decision of a court in such proceedings;
d
sub-paragraph (5) applies in relation to a decision of a court in such proceedings as it applies in relation to a decision of a member State competition authority.
4Cartels
1
“Cartel” means an agreement or concerted practice between two or more competitors aimed at—
a
co-ordinating their competitive behaviour in a market, or
b
otherwise influencing competition in a market,
through practices such as (but not limited to) those listed in sub-paragraph (2).
2
Those practices are—
a
fixing or co-ordinating purchase or selling prices or other trading conditions, including in relation to intellectual property rights,
b
allocating production or sales quotas, and
c
sharing markets and customers, including bid-rigging, restrictions of imports or exports or anti-competitive actions against other competitors.
3
“Cartel leniency programme” means a programme operated by a competition authority under which—
a
an undertaking that has participated in a cartel may provide the competition authority with information about the cartel and the undertaking’s involvement in it, and
b
if it does so voluntarily and independently of the other cartel members, the competition authority may give the undertaking immunity from, or a reduction in, a financial penalty which would otherwise be payable by the undertaking for its participation in the cartel.
4
“Cartel leniency statement” means a set of information provided, orally or in writing, to a competition authority by or on behalf of a person which—
a
consists of information about a cartel and the person’s role in relation to the cartel,
b
is provided voluntarily, and
c
is provided specifically for the purposes of the competition authority’s cartel leniency programme,
excluding any pre-existing information.
5
For the purposes of sub-paragraph (4)—
a
“pre-existing information” means information that exists irrespective of a competition authority’s investigations, and
b
the fact that information is in a competition authority’s file does not prevent it from being pre-existing information.
6
References to a cartel leniency statement include—
a
a part of a cartel leniency statement,
b
a quotation from a cartel leniency statement,
c
all or part of a record of a cartel leniency statement, and
d
a copy of all or part of a cartel leniency statement or of a record of such a statement.
7
On the application of a claimant in competition proceedings, a court or the Tribunal may, in accordance with procedural rules, determine whether information is a cartel leniency statement.
8
For the purposes of making a determination under sub-paragraph (7), the court or the Tribunal may—
a
take evidence from the author of the document, and
b
obtain assistance from a competition authority,
but may not obtain assistance from anyone else.
5Settlement submission to a competition authority
1
“Settlement submission” means a statement made, orally or in writing, to a competition authority by or on behalf of an undertaking—
a
which states—
i
that the undertaking accepts that it has infringed competition law, or
ii
that the undertaking does not accept that it has infringed competition law but will not dispute a decision of the competition authority that it has done so,
b
which is made voluntarily, and
c
which is made for the sole purpose of allowing the competition authority to follow a simplified or expedited procedure in connection with the infringement.
2
References to a settlement submission include—
a
a part of a settlement submission,
b
a quotation from a settlement submission,
c
all or part of a record of a settlement submission, and
d
a copy of all or part of a settlement submission or of a record of such a submission.
3
On the application of a claimant in competition proceedings, a court or the Tribunal may, in accordance with procedural rules, determine whether a document is a settlement submission.
4
For the purposes of making a determination under sub-paragraph (3), the court or the Tribunal may—
a
take evidence from the author of the document, and
b
obtain assistance from a competition authority,
but may not obtain assistance from anyone else.
6Consensual dispute resolution process
1
“Consensual dispute resolution process” means arbitration, mediation or any other process enabling parties to a dispute to resolve it out of court.
2
A dispute is resolved “out of court” even if the process involves a court or the Tribunal approving what the parties agree or declaring their agreement binding.
7Other definitions
1
“Court” means—
a
the High Court or the Court of Appeal in England and Wales,
b
the sheriff or the Court of Session,
c
the High Court or the Court of Appeal in Northern Ireland, or
d
the Supreme Court,
except in paragraphs 3(6) and 35.
2
“Damages” includes any sum of money (other than costs or expenses) which may be awarded in respect of a competition claim.
3
“Procedural rules” means—
a
in relation to proceedings before a court, rules of court, and
b
in relation to proceedings before the Tribunal, Tribunal rules.
4
“Undertaking” includes an association of undertakings.
Part 2Passing On
8Overcharges and underpayments
For the purposes of this Part of this Schedule—
a
there is an overcharge as a result of an infringement of competition law if, when a product or service is acquired directly from the infringer, the price actually paid exceeds the price that would have been paid in the absence of the infringement, and
b
there is an underpayment as a result of an infringement of competition law if, when a product or service is provided directly to the infringer, the price actually paid is less than the amount that would have been paid in the absence of the infringement.
9Burden of proof where an overcharge is passed on to an indirect purchaser
1
Sub-paragraph (2) applies where—
a
there is an overcharge as a result of an infringement of competition law, and
b
a competition claim is made in respect of loss or damage which—
i
arises, directly or indirectly, from the overcharge, and
ii
was suffered by a person who acquired a product or service indirectly from the infringer (“the injured person”).
2
The claimant is to be treated as having proved that the overcharge was passed on to the claimant if the claimant proves that—
a
the defendant infringed competition law,
b
as a result of the infringement, there was an overcharge when a person acquired a product or service directly from the defendant, and
c
the claimant subsequently acquired—
i
the product or service mentioned in paragraph (b), or
ii
a product or service derived from or containing the product or service mentioned in paragraph (b).
3
Sub-paragraph (2) does not apply if the defendant proves that the overcharge, or part of it, was not passed on to the claimant.
4
Where the claimant is not the injured person, the following are to be read as references to the injured person—
a
the second reference to the claimant in the opening words of sub-paragraph (2), and
b
the references to the claimant in sub-paragraphs (2)(c) and (3).
5
Where the defendant is not the infringer, the references in sub-paragraph (2)(a) and (b) to the defendant are to be read as references to the infringer.
10Burden of proof where an underpayment is passed on to an indirect provider
1
Sub-paragraph (2) applies where—
a
there is an underpayment as a result of an infringement of competition law, and
b
a competition claim is made in respect of loss or damage which—
i
arises, directly or indirectly, from the underpayment, and
ii
was suffered by a person who provided a product or service indirectly to the infringer (“the injured person”).
2
The claimant is to be treated as having proved that the underpayment was passed on to the claimant if the claimant proves that—
a
the defendant infringed competition law,
b
as a result of the infringement, there was an underpayment when a person provided a product or service directly to the defendant, and
c
the product or service mentioned in paragraph (b)—
i
was provided to the person by the claimant, or
ii
contained or was derived from a product or service provided by the claimant.
3
Sub-paragraph (2) does not apply if the defendant proves that the underpayment, or part of it, was not passed on to the claimant.
4
Where the claimant is not the injured person, the following are to be read as references to the injured person—
a
the second reference to the claimant in the opening words of sub-paragraph (2), and
b
the references to the claimant in sub-paragraphs (2)(c) and (3).
5
Where the defendant is not the infringer, the references in sub-paragraph (2)(a) and (b) to the defendant are to be read as references to the infringer.
11Burden of proof where an overcharge or underpayment is passed on by the claimant
1
This paragraph applies where—
a
there is an overcharge or underpayment as a result of an infringement of competition law,
b
a person makes a competition claim in respect of loss or damage which arises, directly or indirectly, from the overcharge or underpayment, and
c
in its defence, the defendant claims that the claimant passed on all or part of the overcharge or underpayment to another person.
2
The defendant has the burden of proving—
a
that the claimant passed on the overcharge or underpayment, and
b
the extent to which the claimant did so.
3
Where the competition claim is made by someone other than the person who suffered the loss or damage (“the injured person”), the references in sub-paragraphs (1)(c) and (2) to the claimant are to be read as references to the injured person.
Part 3Small and Medium-Sized Enterprises
12Liability of small and medium-sized enterprises
1
Sub-paragraph (3) applies where—
a
an undertaking participated in an infringement of competition law with one or more other undertakings,
b
throughout the period of the infringement, the undertaking’s share of the relevant market (or, if there was more than one, each relevant market) was less than 5%,
c
but for this paragraph, the undertaking’s liability to pay damages in respect of the infringement (whatever the legal basis of the liability) would irretrievably jeopardise its economic viability and cause its assets to lose all their value, and
d
the undertaking is a small or medium-sized enterprise.
2
Sub-paragraph (3) does not apply where—
a
the undertaking led the infringement,
b
the undertaking coerced one or more of the other undertakings to participate in the infringement, or
c
the undertaking has previously been found to have infringed competition law.
3
The undertaking is not liable (either alone or jointly) to pay damages in respect of loss or damage suffered by a person as a result of the infringement of competition law (whatever the legal basis of the liability) except where—
a
the person acquired a product or service that was the object of the infringement directly or indirectly from the undertaking, or
b
the person acquired a product or service containing or derived from a product or service that was the object of the infringement indirectly from the undertaking.
4
The reference in sub-paragraph (1)(c) to the effect of the undertaking’s liability to pay damages is to its effect taking account of the undertaking’s other liabilities.
5
In this paragraph “small or medium-sized enterprise” means a small or medium-sized enterprise as defined in the Annex to Commission Recommendation (EC) No. 2003/361 of 6 May 2003.
Part 4Cartels
13Presumption that cartels cause harm
For the purposes of competition proceedings, it is to be presumed, unless the contrary is proved, that a cartel causes loss or damage.
14Immunity recipients
1
Paragraphs 15 and 16 apply where—
a
undertakings have infringed the Chapter I prohibition or the prohibition in Article 101(1) by participating in a cartel, and
b
in respect of its participation in the infringement (the “cartel infringement”), an undertaking has been granted immunity from financial penalties under a cartel leniency programme.
2
The undertaking mentioned in sub-paragraph (1)(b) is referred to in paragraphs 15 and 16 as “an immunity recipient”.
15Liability of immunity recipients
An immunity recipient is not liable (either alone or jointly) to pay damages in respect of loss or damage suffered by a person as a result of the cartel infringement (whatever the legal basis of the liability) except where—
a
the person acquired a product or service that was the object of the cartel infringement directly or indirectly from the immunity recipient,
b
the person acquired a product or service containing or derived from a product or service that was the object of the cartel infringement indirectly from the immunity recipient,
c
the person provided a product or service that was the object of the cartel infringement directly or indirectly to the immunity recipient,
d
a product or service that was the object of the cartel infringement contained or was derived from a product or service provided by the person, or
e
the person is unable to obtain full compensation for the loss or damage from other undertakings involved in the cartel infringement.
16Contribution between participants in cartels
1
Sub-paragraph (2) applies in relation to proceedings to recover contribution under section 1 of the Civil Liability (Contribution) Act 1978 or section 3(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 where contribution is to be recovered—
a
in respect of loss or damage suffered by a person as a result of a cartel infringement, and
b
from a person who is an immunity recipient in relation to the cartel infringement.
2
The amount of contribution that the immunity recipient may be required to pay may not exceed the amount of the loss or damage the immunity recipient caused to—
a
persons who acquired products or services that were the object of the cartel infringement directly or indirectly from the immunity recipient,
b
persons who acquired products or services containing or derived from products or services that were the object of the cartel infringement indirectly from the immunity recipient,
c
persons who provided products or services that were the object of the cartel infringement directly or indirectly to the immunity recipient, and
d
persons who provided—
i
products or services that were subsequently contained in products or services that were the object of the cartel infringement, or
ii
products or services from which products or services that were the object of the cartel infringement were subsequently derived.
3
The following have effect subject to sub-paragraph (2)—
a
section 2(1) of the Civil Liability (Contribution) Act 1978 (assessment of contribution);
b
section 3(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 (contribution among joint wrongdoers).
Part 5Limitation and Prescriptive Periods
17Time limits for bringing competition proceedings
1
Under the law of England and Wales and the law of Northern Ireland, proceedings in respect of a competition claim may not be brought before a court or the Tribunal after the end of the limitation period for the claim determined in accordance with this Part of this Schedule.
2
Under the law of Scotland—
a
proceedings in respect of a competition claim may not be brought before a court or the Tribunal after the end of the prescriptive period for the claim determined in accordance with this Part of this Schedule, and
b
accordingly, an obligation in respect of the loss or damage that is the subject of the claim is extinguished,
except where the subsistence of the obligation in relation to which the claim is made was relevantly acknowledged before the end of that period.
3
Section 6 of the Prescription and Limitation (Scotland) Act 1973 (extinction of obligations by prescriptive periods of 5 years) does not apply in relation to an obligation described in sub-paragraph (2).
4
The following provisions of the Prescription and Limitation (Scotland) Act 1973 apply for the purposes of, or in relation to, sub-paragraph (2) as they apply for the purposes of, or in relation to, section 6 of that Act—
a
section 10 (relevant acknowledgment);
b
section 13 (prohibition of contracting out);
c
section 14(1)(c) and (d) (computation of prescriptive periods).
18Length of limitation or prescriptive period
1
The limitation period is 6 years.
2
The prescriptive period is 5 years.
3
But see—
a
the provision in paragraphs 20 to 25 for the running of the period to be suspended in certain circumstances, and
b
paragraph 23(5), which extends the period in certain circumstances.
19Beginning of limitation or prescriptive period
1
The limitation or prescriptive period for a competition claim against an infringer begins with the later of—
a
the day on which the infringement of competition law that is the subject of the claim ceases, and
b
the claimant’s day of knowledge.
2
“The claimant’s day of knowledge” is the day on which the claimant first knows or could reasonably be expected to know—
a
of the infringer’s behaviour,
b
that the behaviour constitutes an infringement of competition law,
c
that the claimant has suffered loss or damage arising from that infringement, and
d
the identity of the infringer.
3
Where the claimant has acquired the right to make the competition claim from another person (whether by operation of law or otherwise) —
a
the reference in sub-paragraph (2) to the day on which the claimant first knows or could reasonably be expected to know something is to be read as a reference to the first day on which either the claimant or a person in whom the cause of action was previously vested first knows or could reasonably be expected to know it, and
b
the reference to the claimant in sub-paragraph (2)(c) is to be read as a reference to the injured person.
4
In sub-paragraph (3), “injured person”, in relation to a competition claim, means a person who suffered the loss or damage that is the subject of the claim.
5
Where a person (“P”) has acquired an infringer’s liability in respect of an infringement of competition law from another person (whether by operation of law or otherwise)—
a
the reference to an infringer in sub-paragraph (1) is to be read as a reference to P, but
b
the references to the infringer in sub-paragraph (2) are to be read as references to the original infringer.
6
The references in sub-paragraphs (2) and (3) to a person knowing something are to a person having sufficient knowledge of it to bring competition proceedings.
7
This paragraph has effect subject to the provision in paragraphs 20 to 25, which defers the beginning of the limitation or prescriptive period in certain circumstances.
20Effect of disability on beginning of limitation period: England and Wales and Northern Ireland
1
This paragraph applies if the claimant in relation to a competition claim is under a disability on the day on which, but for this paragraph, the limitation period for the claim would begin.
2
In England and Wales and Northern Ireland, the limitation period for the claim begins with the earlier of—
a
the day on which the claimant ceases to be under a disability, and
b
the day on which the claimant dies.
3
Where—
a
the claimant has acquired the right to make the competition claim from another person (whether by operation of law or otherwise), and
b
but for this paragraph, the limitation period would begin on the day specified in paragraph 19(2),
the references to the claimant in sub-paragraphs (1) and (2) of this paragraph are to be read as references to the person by reference to whose knowledge that day would fall to be determined in accordance with paragraph 19(3).
4
In England and Wales, references in this paragraph to a person being “under a disability” have the same meaning as in the Limitation Act 1980 (see section 38(2) of that Act).
5
In Northern Ireland, references in this paragraph to a person being “under a disability” have the same meaning as in the Limitation (Northern Ireland) Order 1989 (S.I. 1989/1339 (N.I. 11)) (see article 47 of that Order).
21Suspension during investigation by competition authority
1
Where a competition authority investigates an infringement of competition law, the period of the investigation is not to be counted when calculating whether the limitation or prescriptive period for a competition claim in respect of loss or damage arising from the infringement has expired.
2
The period of an investigation by a competition authority begins when the competition authority takes the first formal step in the investigation.
3
The period of an investigation by a competition authority ends—
a
if the competition authority makes a decision in relation to the infringement as a result of the investigation, at the end of the period of one year beginning with the day on which the decision becomes final, and
b
otherwise, at the end of the period of one year beginning with the day on which the competition authority closes the investigation.
22Suspension during consensual dispute resolution process
1
This paragraph applies where—
a
a dispute arising from an infringement of competition law is the subject of a consensual dispute resolution process,
b
a competition claim is made which arises from the dispute, and
c
the claimant and the defendant participated in the consensual dispute resolution process.
2
The period of the consensual dispute resolution process is not to be counted when calculating whether the limitation or prescriptive period for the claim expired.
3
The period of a consensual dispute resolution process in relation to a dispute begins with the first day on which either of the following occurs—
a
the claimant and the defendant (with or without others) enter into an agreement to engage in the process in respect of the dispute, or
b
the claimant and the defendant submit the dispute to the person who is to run the process.
4
The period of a consensual dispute resolution process ends with the first day on which one of the following occurs —
a
the claimant and the defendant reach an agreement to resolve the dispute;
b
where the process is the subject of an agreement or rules, the process comes to an end in accordance with the agreement or rules;
c
the claimant or defendant notifies the other that it has withdrawn from the process;
d
the claimant or the defendant asks the other to confirm that it wishes to continue with the process and does not receive a response within the period of 14 days beginning with the day on which the request is made;
e
the claimant and the defendant are notified that the person to whom they submitted the dispute refuses to deal with it;
f
the claimant and defendant are notified that the person running the process cannot continue to act in relation to the dispute and fail to agree to submit the dispute to another person within the period of 14 days beginning with the day on which they are notified.
5
Where the competition claim is made in collective proceedings, the references to the claimant in sub-paragraphs (1)(c), (3) and (4) are to be read as references to the claimant or the representative.
6
Where the claimant has acquired the right to make the competition claim from another person (whether by operation of law or otherwise), the references to the claimant in sub-paragraphs (1)(c), (3), (4) and (5) are to be read as references to the claimant or a person in whom the cause of action was previously vested.
7
Where the defendant has acquired the infringer’s liability in respect of the infringement of competition law from another person (whether by operation of law or otherwise), the references to the defendant in sub-paragraphs (1)(c), (3) and (4) are to be read as references to the defendant or a person who has previously held the liability.
23Suspension during collective proceedings
1
Where a competition claim is made in collective proceedings at the commencement of those proceedings (“the section 47B claim”), this paragraph applies for the purpose of determining the limitation or prescriptive period for the claim if it is subsequently made in proceedings under section 47A.
2
The period of the collective proceedings is not to be counted when calculating whether the limitation or prescriptive period has expired.
3
The period of collective proceedings begins with the day on which the collective proceedings are commenced.
4
The period of collective proceedings ends with the first day on which one of the following occurs—
a
the Tribunal declines to make a collective proceedings order in respect of the collective proceedings;
b
the Tribunal makes a collective proceedings order in respect of the proceedings, but the order does not provide that the section 47B claim is eligible for inclusion in the proceedings;
c
the Tribunal rejects the section 47B claim;
d
in the case of opt-in collective proceedings, the period within which a person may choose to have the section 47B claim included in the proceedings expires without the person having done so;
e
in the case of opt-out collective proceedings—
i
a person domiciled in the United Kingdom chooses (within the period in which such a choice may be made) to have the section 47B claim excluded from the collective proceedings, or
ii
the period within which a person not domiciled in the United Kingdom may choose to have the section 47B claim included in the collective proceedings expires without the person having done so;
f
the section 47B claim is withdrawn;
g
the Tribunal revokes the collective proceedings order in respect of the collective proceedings;
h
the Tribunal varies the collective proceedings order in such a way that the section 47B claim is no longer included in the collective proceedings;
i
the section 47B claim is settled with or without the Tribunal’s approval;
j
the section 47B claim is dismissed, discontinued or otherwise disposed of without an adjudication on the merits.
5
Where—
a
there is a period of collective proceedings in relation to a competition claim, and
b
but for this sub-paragraph, the limitation or prescriptive period would expire before the end of the period of 6 months beginning with the day after the day on which the period of collective proceedings ends,
the limitation or prescriptive period for the claim is to be treated as expiring at the end of that 6 month period.
24Suspension of prescriptive period during period of disability: Scotland
1
This paragraph applies if the injured person in relation to a competition claim is under legal disability for a period at any time.
2
In Scotland, the period during which the injured person is under legal disability is not to be counted when calculating whether the prescriptive period for the claim has expired.
3
References in this paragraph to a person being “under legal disability” have the same meaning as in the Prescription and Limitation (Scotland) Act 1973 (see section 15(1) of that Act).
4
In this paragraph, “injured person”, in relation to a competition claim, means a person who suffered the loss or damages that is the subject of the claim.
25Continuity of limitation or prescriptive period
For the purposes of calculating whether the limitation or prescriptive period for a competition claim has expired, a period described in paragraph 21, 22, 23 or 24 is not to be regarded as separating the time immediately before it from the time immediately after it.
26New claims in pending actions: England and Wales and Northern Ireland
1
In section 35 of the Limitation Act 1980 (new claims in pending actions)—
a
subsection (1) applies for the purposes of this Part of this Schedule as it applies for the purposes of that Act, and
b
subsections (3) to (8) apply in relation to a competition claim that is a new claim and to competition proceedings as they apply in relation to other new claims and proceedings.
2
In Article 73 of the Limitation (Northern Ireland) Order 1989 (S.I. 1989/1339 (N.I. 11)) (new claims in pending actions)—
a
paragraph (1) applies for the purposes of this Part of this Schedule as it applies for the purposes of that Order, and
b
paragraphs (2) to (7) apply in relation to a competition claim that is a new claim and to competition proceedings as they apply in relation to other new claims and proceedings.
Part 6Disclosure etc
27Disclosure orders
1
For the purposes of this Part of this Schedule (and subject to sub-paragraph (2)), a court or the Tribunal makes a disclosure order in respect of something if—
a
in England and Wales or Northern Ireland, it orders its disclosure or production in accordance with procedural rules, or
b
in Scotland, it grants commission and diligence for its recovery or makes an order in respect of it under section 1 of the Administration of Justice (Scotland) Act 1972 (inspection of documents etc).
2
A court or the Tribunal does not make a disclosure order in respect of something if it does something described in sub-paragraph (1) for the purposes of enabling a court or the Tribunal to determine whether it is a cartel leniency statement or a settlement submission.
28Restriction in relation to settlement submissions and cartel leniency statements
For the purposes of competition proceedings, a court or the Tribunal must not make a disclosure order in respect of—
a
a settlement submission which has not been withdrawn, or
b
a cartel leniency statement (whether or not it has been withdrawn).
29Restriction in relation to investigation materials
For the purposes of competition proceedings, a court or the Tribunal must not make a disclosure order in respect of a competition authority’s investigation materials before the day on which the competition authority closes the investigation to which those materials relate.
30Restriction in relation to material in a competition authority’s file
1
For the purposes of competition proceedings, a court or the Tribunal must not make a disclosure order addressed to a competition authority in respect of documents or information included in a competition authority’s file.
2
Sub-paragraph (1) does not apply where the court or the Tribunal making the order is satisfied that no-one else is reasonably able to provide the documents or information.
31Power of High Court in Northern Ireland to order disclosure etc by non-parties
1
On the application of a party to competition proceedings, where it appears to the High Court in Northern Ireland that evidence relevant to the proceedings is likely to be in the possession, custody or power of a person who is not a party to the proceedings, the court may order the person—
a
to disclose whether such evidence is in the person’s possession, custody or power, and
b
if it is, to produce it—
i
to the applicant, or
ii
on such conditions as may be specified in the order, to the applicant’s legal adviser or other professional adviser.
2
An order under sub-paragraph (1) must not be made if the court considers that compliance with it would be likely to be injurious to the public interest.
3
Rules of court may make provision specifying circumstances in which a court may or may not make an order under sub-paragraph (1).
4
The power under sub-paragraph (3) includes power to make incidental, supplementary and consequential provision.
5
Sub-paragraph (1) is without prejudice to the exercise by the High Court in Northern Ireland of any power to make orders which is exercisable apart from this paragraph.
Part 7Use of Evidence
32Cartel leniency statements and settlement submissions
1
A settlement submission which has not been withdrawn is not admissible in evidence in competition proceedings.
2
A cartel leniency statement is not admissible in evidence in competition proceedings (whether or not it has been withdrawn).
3
The prohibitions in sub-paragraphs (1) and (2) do not apply if a party to the proceedings obtained the submission or statement—
a
lawfully, and
b
otherwise than from a competition authority’s file.
33Investigation materials
1
A competition authority’s investigation materials are not admissible in evidence in competition proceedings at any time before the competition authority has closed the investigation to which those materials relate.
2
The prohibition in sub-paragraph (1) does not apply if a party to the proceedings obtained the materials—
a
lawfully, and
b
otherwise than from a competition authority’s file.
34Material obtained from a competition authority’s file
Documents or information obtained by a person (“P”) from a competition authority’s file are admissible in evidence in competition proceedings only where—
a
the proceedings relate, entirely or partly, to a competition claim made by P or by a person who has acquired P’s right to make the claim (whether by operation of law or otherwise), and
b
none of the prohibitions in paragraphs 32 and 33 applies.
35Decisions of member State competition authorities
1
For the purposes of competition proceedings, a final decision of a member State competition authority or review court that there has been an infringement of Article 101(1) or Article 102 by an undertaking is prima facie evidence of the infringement.
2
“Review court” means a court of a member State other than the United Kingdom which—
a
hears appeals in connection with a decision of a competition authority of the member State that there has been an infringement of Article 101(1) or Article 102, or
b
reviews judgments made by another court of the member State in connection with such decisions,
and paragraph 3(5) (when a decision becomes final) applies in relation to a decision of a review court as it applies in relation to a decision of a member State competition authority.
Part 8Exemplary Damages
36Exemplary damages
A court or the Tribunal may not award exemplary damages in competition proceedings.
Part 9
Contribution and Consensual Settlements
37Consensual settlement
In this Part of this Schedule, “consensual settlement” means an agreement relating to a dispute about loss or damage arising from an infringement of competition law which—
a
is reached through a consensual dispute resolution process,
b
is made between—
i
an infringer or a person who has acquired an infringer’s liability in respect of the infringement (whether by operation of law or otherwise) (“the settling infringer”), and
ii
a person who suffered the loss or damage or a person who has acquired such a person’s right to make a claim in respect of the loss or damage (whether by operation of law or otherwise) (“the settling complainant”), and
c
entirely resolves the dispute between the settling infringer and the settling complainant.
38Assessment of contribution
1
This paragraph applies in relation to proceedings to recover contribution under section 1 of the Civil Liability (Contribution) Act 1978 or section 3(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 where contribution is to be recovered in respect of loss or damage suffered by a person as a result of an infringement of competition law.
2
The amount of contribution that one person liable in respect of the loss or damage may recover from another must be determined in the light of their relative responsibility for the whole of the loss or damage caused by the infringement.
3
The determination of that amount must take into account any damages paid by the other person in respect of the loss or damage in accordance with a consensual settlement.
4
The following have effect subject to this paragraph—
a
section 2(1) of the Civil Liability (Contribution) Act 1978 (assessment of contribution);
b
section 3(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 (contribution among joint wrongdoers).
39Effect of consensual settlement on the amount of a claim
1
Where loss or damage arising from an infringement of competition law is the subject of—
a
a consensual settlement, and
b
a competition damages claim by the settling complainant,
the amount of the settling complainant’s claim is reduced by the settling infringer’s share of the loss or damage.
2
Sub-paragraph (1) has effect regardless of the terms of the consensual settlement.
40Effect of consensual settlement for the settling infringer
1
Where loss or damage arising from an infringement of competition law is the subject of a consensual settlement, the settling complainant ceases to have a right of action against the settling infringer in respect of the loss or damage.
2
Sub-paragraph (1) has effect regardless of the terms of the consensual settlement.
3
Sub-paragraphs (1) and (2) do not apply where—
a
an undertaking other than the settling infringer is liable to pay damages to the settling complainant in respect of loss or damage which arises from the infringement,
b
that undertaking is (or, if there is more than one, those undertakings are) unable to pay damages corresponding to the outstanding amount of the settling complainant’s claim, and
c
the settling infringer’s liability for that amount is not expressly excluded by the terms of the consensual settlement.
41Effect of consensual settlement on contribution between defendants
1
Where—
a
loss or damage arising from an infringement of competition law is the subject of a consensual settlement,
b
it is also the subject of a competition damages claim by the settling complainant, and
c
an undertaking other than the settling infringer is liable to pay damages to the settling complainant in respect of the loss or damage that is the subject of the claim,
that undertaking may not recover contribution from the settling infringer in respect of the loss or damage under section 1 of the Civil Liability (Contribution) Act 1978 or section 3(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940.
2
Sub-paragraph (1) has effect regardless of the terms of the consensual settlement.
3
The following have effect subject to this paragraph—
a
section 1 of the Civil Liability (Contribution) Act 1978;
b
section 3(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940.
Part 10Application
42
1
Parts 2 to 5, 8 and 9 of this Schedule apply in relation to competition claims, competition proceedings, claims for contribution arising from competition claims and proceedings relating to such claims only to the extent that the claims and proceedings relate to loss or damage suffered on or after the relevant day as a result of an infringement of competition law that takes place on or after that day.
2
Where an infringement of competition law takes place over a period of 2 or more days it is to be taken for the purposes of sub-paragraph (1) to have taken place on the first of those days
43
The following provisions of this Schedule apply only in relation to proceedings on a competition claim in relation to which the first proceedings before a court or the Tribunal began on or after the relevant day—
a
paragraphs 4(7) and (8) and 5(3) and (4);
b
Parts 6 and 7.
44
In this Part of this Schedule “the relevant day” means the day on which the Claims in respect of Loss or Damage arising from Competition Infringements (Competition Act 1998 and Other Enactments (Amendment)) Regulations 2017 come into force.
SCHEDULE 9F150CMA's Rules
Word in Sch. 9 heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 58(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)
General
F1101
In this Schedule “rules” means rules made by the F175CMA under section 51.
F144Delegation of functions
Sch. 9 para. 1A and cross-heading inserted (25.4.2013 for specified purposes, 1.4.2014 in so far as not already in force) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 42(4), 103(1)(i)(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)
1A
1
Rules may provide for the exercise of a function of the CMA under this Part on its behalf—
a
by one or more members of the CMA Board (see Part 2 of Schedule 4 to the Enterprise and Regulatory Reform Act 2013);
b
by one or more members of the CMA panel (see Part 3 of that Schedule to that Act);
c
by one or more members of staff of the CMA;
d
jointly by one or more of the persons mentioned in paragraph (a), (b) or (c).
2
Sub-paragraph (1) does not apply in relation to any function prescribed in regulations made under section 7(1) of the Civil Aviation Act 1982 (power for Secretary of State to prescribe certain functions of the Civil Aviation Authority which must not be performed on its behalf by any other person).
Applications
2
F111Rules may make provision—
a
as to the form and manner in which an application for guidance or an application for a decision must be made;
b
for the procedure to be followed in dealing with the application;
c
for the application to be dealt with in accordance with a timetable;
d
as to the documents and information which must be given to the F12OFT in connection with the application;
e
requiring the applicant to give such notice of the application, to such other persons, as may be specified;
f
as to the consequences of a failure to comply with any rule made by virtue of sub-paragraph (e);
g
as to the procedure to be followed when the application is subject to the concurrent jurisdiction of the F12OFT and a regulator.
Provisional decisions
3
Guidance
4
F113Rules may make provision as to—
a
the form and manner in which guidance is to be given;
b
the procedure to be followed if—
i
the F12OFT takes further action with respect to an agreement after giving guidance that it is not likely to infringe the Chapter I prohibition; or
ii
the F12OFT takes further action with respect to conduct after giving guidance that it is not likely to infringe the Chapter II prohibition.
Decisions
5
1
Rules may make provision as to—
a
the form and manner in which notice of any decision is to be given;
b
the person or persons to whom the notice is to be given;
c
the manner in which the F176CMA is to publish a decision;
F114d
the procedure to be followed if—
i
the F176CMA takes further action with respect to an agreement after having decided that it does not infringe the Chapter I prohibition;
ii
iii
the F176CMA takes further action with respect to conduct after having decided that it does not infringe the Chapter II prohibition; or
F1152
In this paragraph “decision” means a decision of the F176CMA —
a
as to whether or not an agreement has infringed the Chapter I prohibition;
b
as to whether or not an agreement has infringed the prohibition in F136Article 101(1);
c
as to whether or not conduct has infringed the Chapter II prohibition; or
d
as to whether or not conduct has infringed the prohibition inF137Article 102.
Individual exemptions
6
F116Rules may make provision as to—
a
the procedure to be followed by the F12OFT when deciding whether, in accordance with section 5—
i
to cancel an individual exemption that F12it has granted,
ii
to vary or remove any of its conditions or obligations, or
iii
to impose additional conditions or obligations;
b
the form and manner in which notice of such a decision is to be given.
7
F117Rules may make provision as to—
a
the form and manner in which an application under section 4(6) for the extension of an individual exemption is to be made;
b
the circumstances in which the F12OFT will consider such an application;
c
the procedure to be followed by the F12OFT when deciding whether to grant such an application;
d
the form and manner in which notice of such a decision is to be given.
Block exemptions
F1188
Rules may make provision as to—
a
the procedure to be followed by the F177CMA if it cancels a block exemption;
b
the procedure to be followed by the F177CMA if it withdraws the benefit of a regulation of the Commission pursuant to Article 29(2) of the EC Competition Regulation.
Parallel exemptions
9
Rules may make provision as to—
a
the circumstances in which the F178CMA may—
i
impose conditions or obligations in relation to a parallel exemption,
ii
vary or remove any such conditions or obligations,
iii
impose additional conditions or obligations, or
iv
cancel the exemption;
c
the form and manner in which notice of a decision to take any of the steps in sub-paragraph (a) is to be given;
d
the circumstances in which an exemption may be cancelled with retrospective effect.
Section 11 exemptions
10
Rules may, with respect to any exemption provided by regulations made under section 11, make provision similar to that made with respect to parallel exemptions by section 10 or by rules under paragraph 9.
Directions withdrawing exclusions
11
Disclosure of information
12
1
Rules may make provision as to the circumstances in which the F180CMA is to be required, before disclosing information given to F12it by a third party in connection with the exercise of any of the F181CMA's functions under Part I, to give notice, and an opportunity to make representations, to the third party.
2
In relation to the agreement (or conduct) concerned, “third party” means a person who is not a party to the agreement (or who has not engaged in the conduct).
Applications under section 47
13
Rules may make provision as to—
a
the period within which an application under section 47(1) must be made;
b
the procedure to be followed by the F182CMA in dealing with the application;
c
the person or persons to whom notice of the F183CMA's response to the application is to be given.
F145Oral hearings: procedure
Sch. 9 para. 13A and cross-heading inserted (25.4.2013 for specified purposes, 1.4.2014 in so far as not already in force) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 42(5), 103(1)(i)(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)
13A
1
Rules may make provision as to the procedure to be followed by the CMA in holding oral hearings as part of an investigation.
2
Rules may, in particular, make provision as to the appointment of a person mentioned in sub-paragraph (3) who has not been involved in the investigation in question to—
a
chair an oral hearing, and
b
prepare a report following the hearing and give it to the person who is to exercise on behalf of the CMA its function of making a decision (within the meaning given by section 31(2)) as a result of the investigation.
3
The persons are—
a
a member of the CMA Board;
b
a member of the CMA panel;
c
a member of staff of the CMA.
4
The report must—
a
contain an assessment of the fairness of the procedure followed in holding the oral hearing, and
b
identify any other concerns about the fairness of the procedure followed in the investigation which have been brought to the attention of the person preparing the report.
F146Procedural complaints
Sch. 9 para. 13B and cross-heading inserted (25.4.2013 for specified purposes, 1.4.2014 in so far as not already in force) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 42(6), 103(1)(i)(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)
13B
1
Rules may make provision as to arrangements to be made by the CMA for dealing with complaints about the conduct by the CMA of an investigation.
2
Rules may, in particular, make provision as to—
a
the appointment of a person mentioned in sub-paragraph (3) who has not been involved in the investigation in question to consider any such complaint;
b
the time-table for the consideration of any such complaint.
3
The persons are—
a
a member of the CMA Board;
b
a member of the CMA panel;
c
a member of staff of the CMA.
F147Settling cases
Sch. 9 para. 13C and cross-heading inserted (25.4.2013 for specified purposes, 1.4.2014 in so far as not already in force) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 42(7), 103(1)(i)(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)
13C
Rules may make provision as to the procedure to be followed in a case where, during an investigation, one or more persons notify the CMA that they accept that there has been an infringement of a kind to which the investigation relates.
Enforcement
14
SCHEDULE 10 Regulators
Part I Monopolies
F481
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Part II The Prohibitions
Telecommunications
I22
F881
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F882
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F883
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F884
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F885
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F886
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F497
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F898
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F909
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F5010
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Gas
I33
1
2
Accordingly, that Act is amended as follows.
F13
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
Section 36A is amended as follows.
5
For subsection (3) substitute—
3
The Director shall be entitled to exercise, concurrently with the Director General of Fair Trading, the functions of that Director under the provisions of Part I of the Competition Act 1998 (other than sections 38(1) to (6) and 51), so far as relating to—
a
agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act, or
b
conduct of the kind mentioned in section 18(1) of that Act,
which relate to the carrying on of activities to which this subsection applies.
3A
So far as necessary for the purposes of, or in connection with, the provisions of subsection (3) above, references in Part I of the Competition Act 1998 to the Director General of Fair Trading are to be read as including a reference to the Director (except in sections 38(1) to (6), 51, 52(6) and (8) and 54 of that Act and in any other provision of that Act where the context otherwise requires).
F516
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
In subsection (6), omit “or (3)”.
8
In subsection (7), for paragraph (b) substitute—
b
Part I of the Competition Act 1998 (other than sections 38(1) to (6) and 51),
F529
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F5210
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F5211
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Electricity
I44
1
2
Accordingly, that Act is amended as follows.
F23
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
Section 43 is amended as follows.
5
For subsection (3) substitute—
3
The Director shall be entitled to exercise, concurrently with the Director General of Fair Trading, the functions of that Director under the provisions of Part I of the Competition Act 1998 (other than sections 38(1) to (6) and 51), so far as relating to—
a
agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act, or
b
conduct of the kind mentioned in section 18(1) of that Act,
which relate to commercial activities connected with the generation, transmission or supply of electricity.
3A
So far as necessary for the purposes of, or in connection with, the provisions of subsection (3) above, references in Part I of the Competition Act 1998 to the Director General of Fair Trading are to be read as including a reference to the Director (except in sections 38(1) to (6), 51, 52(6) and (8) and 54 of that Act and in any other provision of that Act where the context otherwise requires).
F536
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
In subsection (5), omit “or (3)”.
8
In subsection (6), for paragraph (b) substitute—
b
Part I of the Competition Act 1998 (other than sections 38(1) to (6) and 51),
F549
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Water
I55
1
In consequence of the repeal by this Act of provisions of the M17Competition Act 1980, the functions exercisable by virtue of subsection (3) of section 31 of the M18Water Industry Act 1991 (functions of Director with respect to competition) are no longer exercisable by the Director General of Water Services.
2
Accordingly, that Act is amended as follows.
F1263
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
In section 2, after subsection (6), insert—
6A
Subsections (2) to (4) above do not apply in relation to anything done by the Director in the exercise of functions assigned to him by section 31(3) below (“Competition Act functions”).
6B
The Director may nevertheless, when exercising any Competition Act function, have regard to any matter in respect of which a duty is imposed by any of subsections (2) to (4) above, if it is a matter to which the Director General of Fair Trading could have regard when exercising that function.
5
Section 31 is amended as follows.
6
For subsection (3) substitute—
3
The Director shall be entitled to exercise, concurrently with the Director General of Fair Trading, the functions of that Director under the provisions of Part I of the Competition Act 1998 (other than sections 38(1) to (6) and 51), so far as relating to—
a
agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act, or
b
conduct of the kind mentioned in section 18(1) of that Act,
which relate to commercial activities connected with the supply of water or securing a supply of water or with the provision or securing of sewerage services.
F557
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8
After subsection (4), insert—
4A
So far as necessary for the purposes of, or in connection with, the provisions of subsection (3) above, references in Part I of the Competition Act 1998 to the Director General of Fair Trading are to be read as including a reference to the Director (except in sections 38(1) to (6), 51, 52(6) and (8) and 54 of that Act and in any other provision of that Act where the context otherwise requires).
F569
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F5610
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11
In subsection (7), omit “or (3)”.
12
In subsection (8), for paragraph (b) substitute—
b
Part I of the Competition Act 1998 (other than sections 38(1) to (6) and 51),
F5713
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Railways
I66
1
2
Accordingly, that Act is amended as follows.
3
In section 4 (general duties of the Secretary of State and the Regulator), after subsection (7), insert—
7A
Subsections (1) to (6) above do not apply in relation to anything done by the Regulator in the exercise of functions assigned to him by section 67(3) below (“Competition Act functions”).
7B
The Regulator may nevertheless, when exercising any Competition Act function, have regard to any matter in respect of which a duty is imposed by any of subsections (1) to (6) above, if it is a matter to which the Director General of Fair Trading could have regard when exercising that function.
4
Section 67 is amended as follows.
5
For subsection (3) substitute—
3
The Regulator shall be entitled to exercise, concurrently with the Director, the functions of the Director under the provisions of Part I of the Competition Act 1998 (other than sections 38(1) to (6) and 51), so far as relating to—
a
agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act, or
b
conduct of the kind mentioned in section 18(1) of that Act,
which relate to the supply of railway services.
3A
So far as necessary for the purposes of, or in connection with, the provisions of subsection (3) above, references in Part I of the Competition Act 1998 to the Director are to be read as including a reference to the Regulator (except in sections 38(1) to (6), 51, 52(6) and (8) and 54 of that Act and in any other provision of that Act where the context otherwise requires).
F586
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
In subsection (6)(a), omit “or (3)”.
8
In subsection (8), for paragraph (b) substitute—
b
Part I of the Competition Act 1998 (other than sections 38(1) to (6) and 51),
F599
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Part III The Prohibitions: Northern Ireland
Electricity
I77
1
In consequence of the repeal by this Act of provisions of the M21Competition Act 1980, the functions transferred by paragraph (3) of Article 46 of the M22Electricity (Northern Ireland) Order 1992 (functions with respect to competition) are no longer exercisable by the Director General of Electricity Supply for Northern Ireland.
2
Accordingly, that Order is amended as follows.
3
F39In Article 6 (general duties of the Director), after paragraph (2), add—
3
Paragraph (1) does not apply in relation to anything done by the Director in the exercise of functions assigned to him by Article 46(3) (“Competition Act functions”).
4
The Director may nevertheless, when exercising any Competition Act function, have regard to any matter in respect of which a duty is imposed by paragraph (1) (“a general matter”), if it is a matter to which the Director General of Fair Trading could have regard when exercising that function; but that is not to be taken as implying that, in the exercise of any function mentioned in Article 4(7) or paragraph (2), regard may not be had to any general matter.
4
Article 46 is amended as follows.
5
For paragraph (3) substitute—
3
The Director shall be entitled to exercise, concurrently with the Director General of Fair Trading, the functions of that Director under the provisions of Part I of the Competition Act 1998 (other than sections 38(1) to (6) and 51), so far as relating to—
a
agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act, or
b
conduct of the kind mentioned in section 18(1) of that Act,
which relate to commercial activities connected with the generation, transmission or supply of electricity.
3A
So far as necessary for the purposes of, or in connection with, the provisions of paragraph (3), references in Part I of the Competition Act 1998 to the Director General of Fair Trading are to be read as including a reference to the Director (except in sections 38(1) to (6), 51, 52(6) and (8) and 54 of that Act and in any other provision of that Act where the context otherwise requires).
F606
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
In paragraph (5), omit “or (3)”.
8
In paragraph (6), for sub-paragraph (b) substitute—
b
Part I of the Competition Act 1998 (other than sections 38(1) to (6) and 51),
F619
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Gas
I88
1
In consequence of the repeal by this Act of provisions of the M23Competition Act 1980, the functions transferred by paragraph (3) of Article 23 of the M24Gas (Northern Ireland) Order 1996 (functions with respect to competition) are no longer exercisable by the Director General of Gas for Northern Ireland.
2
Accordingly, that Order is amended as follows.
3
F40In Article 5 (general duties of the Department and Director), after paragraph (4), insert—
4A
Paragraphs (2) to (4) do not apply in relation to anything done by the Director in the exercise of functions assigned to him by Article 23(3) (“Competition Act functions”).
4B
The Director may nevertheless, when exercising any Competition Act function, have regard to any matter in respect of which a duty is imposed by any of paragraphs (2) to (4), if it is a matter to which the Director General of Fair Trading could have regard when exercising that function.
4
Article 23 is amended as follows.
5
For paragraph (3) substitute—
3
The Director shall be entitled to exercise, concurrently with the Director General of Fair Trading, the functions of that Director under the provisions of Part I of the Competition Act 1998 (other than sections 38(1) to (6) and 51), so far as relating to—
a
agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act, or
b
conduct of the kind mentioned in section 18(1) of that Act,
connected with the conveyance, storage or supply of gas.
3A
So far as necessary for the purposes of, or in connection with, the provisions of paragraph (3), references in Part I of the Competition Act 1998 to the Director General of Fair Trading are to be read as including a reference to the Director (except in sections 38(1) to (6), 51, 52(6) and (8) and 54 of that Act and in any other provision of that Act where the context otherwise requires).
F626
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
In paragraph (5), omit “or (3)”.
8
In paragraph (6), for sub-paragraph (b) substitute—
b
Part I of the Competition Act 1998 (other than sections 38(1) to (6) and 51),
F639
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F6310
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F6311
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Part IV Utilities: Minor and Consequential Amendments
The Telecommunications Act 1984 (c.12)
I99
1
The Telecommunications Act 1984 is amended as follows.
F912
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F913
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F914
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F645
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F926
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
In section 101(3) (general restrictions on disclosure of information)—
a
omit paragraphs (d) and (e) (which refer to the Restrictive Trade Practices Act 1976 and the M25Resale Prices Act 1976);
b
after paragraph (m), insert—
n
the Competition Act 1998
8
At the end of section 101, insert—
6
Information obtained by the Director in the exercise of functions which are exercisable concurrently with the Director General of Fair Trading under Part I of the Competition Act 1998 is subject to sections 55 and 56 of that Act (disclosure) and not to subsections (1) to (5) of this section.
The Gas Act 1986 (c.44)
I1010
1
The Gas Act 1986 is amended as follows.
F662
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
In section 25, omit subsection (2) (which falls with the repeal of the M26Restrictive Trade Practices Act 1976).
F654
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
In section 28 (orders for securing compliance with certain provisions), in subsection (5), after paragraph (aa), omit “or” and after paragraph (b), insert
or
c
that the most appropriate way of proceeding is under the Competition Act 1998.
6
In section 42(3) (general restrictions on disclosure of information)—
a
omit paragraphs (e) and (f) (which refer to the Restrictive Trade Practices Act 1976 and the M27Resale Prices Act 1976);
b
after paragraph (n), insert—
o
the Competition Act 1998
7
At the end of section 42, insert—
7
Information obtained by the Director in the exercise of functions which are exercisable concurrently with the Director General of Fair Trading under Part I of the Competition Act 1998 is subject to sections 55 and 56 of that Act (disclosure) and not to subsections (1) to (6) of this section.
The Water Act 1989 (c.15)
I1111
In section 174(3) of the Water Act 1989 (general restrictions on disclosure of information)—
a
omit paragraphs (d) and (e) (which refer to the Restrictive Trade Practices Act 1976 and the Resale Prices Act 1976);
b
after paragraph (l), insert—
ll
the Competition Act 1998
The Electricity Act 1989 (c.29)
I1212
1
The Electricity Act 1989 is amended as follows.
2
In section 12 (modification references to Competition Commission), for subsections (8) and (9) substitute—
8
The provisions mentioned in subsection (8A) are to apply in relation to references under this section as if—
a
the functions of the Competition Commission in relation to those references were functions under the 1973 Act;
b
the expression “merger reference” included a reference under this section;
c
in section 70 of the 1973 Act—
i
references to the Secretary of State were references to the Director, and
ii
the reference to three months were a reference to six months.
8A
The provisions are—
a
sections 70 (time limit for report on merger) and 85 (attendance of witnesses and production of documents) of the 1973 Act;
b
Part II of Schedule 7 to the Competition Act 1998 (performance of the Competition Commission’s general functions); and
c
section 24 of the 1980 Act (modification of provisions about performance of such functions).
9
For the purposes of references under this section, the Secretary of State is to appoint not less than eight members of the Competition Commission.
9A
In selecting a group to perform the Commission’s functions in relation to any such reference, the chairman of the Commission must select up to three of the members appointed under subsection (9) to be members of the group.
3
In section 13, omit subsection (2) (which falls with the repeal of the M28Restrictive Trade Practices Act 1976).
F674
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
In section 25 (orders for securing compliance), in subsection (5), after paragraph (b), omit “or” and after paragraph (c), insert
or
d
that the most appropriate way of proceeding is under the Competition Act 1998.
F686
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
In section 57(3) (general restrictions on disclosure of information)—
a
b
after paragraph (no), insert—
nop
the Competition Act 1998
8
At the end of section 57, insert—
7
Information obtained by the Director in the exercise of functions which are exercisable concurrently with the Director General of Fair Trading under Part I of the Competition Act 1998 is subject to sections 55 and 56 of that Act (disclosure) and not to subsections (1) to (6) of this section.
The Water Industry Act 1991 (c.56)
I1313
1
The Water Industry Act 1991 is amended as follows.
2
F120In section 12(5) (determinations under conditions of appointment)—
a
after “this Act”, insert “
or
”;
b
omit “or the 1980 Act”.
3
F120In section 14 (modification references to Competition Commission), for subsections (7) and (8) substitute—
7
The provisions mentioned in subsection (7A) are to apply in relation to references under this section as if—
a
the functions of the Competition Commission in relation to those references were functions under the 1973 Act;
b
the expression “merger reference” included a reference under this section;
c
in section 70 of the 1973 Act—
i
references to the Secretary of State were references to the Director, and
ii
the reference to three months were a reference to six months.
7A
The provisions are—
a
sections 70 (time limit for report on merger) and 85 (attendance of witnesses and production of documents) of the 1973 Act;
b
Part II of Schedule 7 to the Competition Act 1998 (performance of the Competition Commission’s general functions); and
c
section 24 of the 1980 Act (modification of provisions about performance of such functions).
8
For the purposes of references under this section, the Secretary of State is to appoint not less than eight members of the Competition Commission.
8A
In selecting a group to perform the Commission’s functions in relation to any such reference, the chairman of the Commission must select one or more of the members appointed under subsection (8) to be members of the group.
4
In section 15, omit subsection (2) (which falls with the repeal of the Restrictive Trade Practices Act 1976).
5
In section 17 (modification by order under other enactments)—
a
in subsection (1), omit paragraph (b) and the “or” immediately before it;
b
in subsection (2)—
i
after paragraph (a), insert “
or
”
;
ii
omit paragraph (c) and the “or” immediately before it;
c
in subsection (4), omit “or the 1980 Act”.
6
In section 19 (exceptions to duty to enforce), after subsection (1), insert—
1A
The Director shall not be required to make an enforcement order, or to confirm a provisional enforcement order, if he is satisfied that the most appropriate way of proceeding is under the Competition Act 1998.
7
In section 19(3), after “subsection (1) above”, insert “
or, in the case of the Director, is satisfied as mentioned in subsection (1A) above,
”
.
F698
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9
After section 206(9) (restriction on disclosure of information), insert—
9A
Information obtained by the Director in the exercise of functions which are exercisable concurrently with the Director General of Fair Trading under Part I of the Competition Act 1998 is subject to sections 55 and 56 of that Act (disclosure) and not to subsections (1) to (9) of this section.
10
In Schedule 15 (disclosure of information), in Part II (enactments in respect of which disclosure may be made)—
a
b
after the entry relating to the M33Railways Act 1993, insert the entry— “
The Competition Act 1998
”
.
The Water Resources Act 1991 (c.57)
I1414
In Schedule 24 to the Water Resources Act 1991 (disclosure of information), in Part II (enactments in respect of which disclosure may be made)—
a
omit the entries relating to the Restrictive Trade Practices Act 1976 and the Resale Prices Act 1976;
b
after the entry relating to the M34Coal Industry Act 1994, insert the entry— “
The Competition Act 1998
”
.
The Railways Act 1993 (c.43)
I1515
1
The Railways Act 1993 is amended as follows.
F712
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
In section 14, omit subsection (2) (which falls with the repeal of the M35Restrictive Trade Practices Act 1976).
F704
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
In section 22, after subsection (6), insert—
6A
Neither the Director General of Fair Trading nor the Regulator may exercise, in respect of an access agreement, the powers given by section 32 (enforcement directions) or section 35(2) (interim directions) of the Competition Act 1998.
6B
Subsection (6A) does not apply to the exercise of the powers given by section 35(2) in respect of conduct—
a
which is connected with an access agreement; and
b
in respect of which section 35(1)(b) of that Act applies.
6
In section 55 (orders for securing compliance), after subsection (5), insert—
5A
The Regulator shall not make a final order, or make or confirm a provisional order, in relation to a licence holder or person under closure restrictions if he is satisfied that the most appropriate way of proceeding is under the Competition Act 1998.
7
In section 55—
F3a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
in subsection (11), for “subsection (10)” substitute “
subsections (5A) and (10)
”
.
8
Omit section 131 (modification of Restrictive Trade Practices Act 1976).
9
In section 145(3) (general restrictions on disclosure of information)—
a
b
after paragraph (q), insert—
the Competition Act 1998.
10
After section 145(6), insert—
6A
Information obtained by the Regulator in the exercise of functions which are exercisable concurrently with the Director General of Fair Trading under Part I of the Competition Act 1998 is subject to sections 55 and 56 of that Act (disclosure) and not to subsections (1) to (6) of this section.
The Channel Tunnel Rail Link Act 1996 (c.61)
16
1
The Channel Tunnel Rail Link Act 1996 is amended as follows.
2
In section 21 (duties as to exercise of regulatory functions), in subsection (6), at the end of the paragraph about regulatory functions, insert
other than any functions assigned to him by virtue of section 67(3) of that Act (“Competition Act functions”).
7
The Regulator may, when exercising any Competition Act function, have regard to any matter to which he would have regard if—
a
he were under the duty imposed by subsection (1) or (2) above in relation to that function; and
b
the matter is one to which the Director General of Fair Trading could have regard if he were exercising that function.
3
In section 22 (restriction of functions in relation to competition etc.), for subsection (3) substitute—
3
The Rail Regulator shall not be entitled to exercise any functions assigned to him by section 67(3) of the M38Railways Act 1993 (by virtue of which he exercises concurrently with the Director General of Fair Trading certain functions under Part I of the Competition Act 1998 so far as relating to matters connected with the supply of railway services) in relation to—
a
any agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act that have been entered into or taken by, or
b
any conduct of the kind mentioned in section 18(1) of that Act that has been engaged in by,
a rail link undertaker in connection with the supply of railway services, so far as relating to the rail link.
Part V Minor and Consequential Amendments: Northern Ireland
The Electricity (Northern Ireland) Order 1992
I1617
1
The M39Electricity (Northern Ireland) Order 1992 is amended as follows.
2
In Article 15 (modification references to Competition Commission), for paragraphs (8) and (9) substitute—
8
The provisions mentioned in paragraph (8A) are to apply in relation to references under this Article as if—
a
the functions of the Competition Commission in relation to those references were functions under the 1973 Act;
b
“merger reference” included a reference under this Article;
c
in section 70 of the 1973 Act—
i
references to the Secretary of State were references to the Director, and
ii
the reference to three months were a reference to six months.
8A
The provisions are—
a
sections 70 (time limit for report on merger) and 85 (attendance of witnesses and production of documents) of the 1973 Act;
b
Part II of Schedule 7 to the Competition Act 1998 (performance of the Competition Commission’s general functions); and
c
section 24 of the 1980 Act (modification of provisions about performance of such functions).
9
The Secretary of State may appoint members of the Competition Commission for the purposes of references under this Article.
9A
In selecting a group to perform the Commission’s functions in relation to any such reference, the chairman of the Commission must select up to three of the members appointed under paragraph (9) to be members of the group.
3
In Article 16, omit paragraph (2) (which falls with the repeal of the M40Restrictive Trade Practices Act 1976).
4
In Article 18 (modification by order under other statutory provisions)—
a
in paragraph (1), omit sub-paragraph (b) and the “or” immediately before it;
b
in paragraph (2)—
i
after sub-paragraph (a), insert “
or
”
;
ii
omit sub-paragraph (c) and the “or” immediately before it;
c
in paragraph (3), omit “or the 1980 Act”.
5
F41In Article 28 (orders for securing compliance), in paragraph (5), after sub-paragraph (b), omit “or” and after sub-paragraph (c), insert
or
d
that the most appropriate way of proceeding is under the Competition Act 1998.
F726
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
F42In Article 61(3) (general restrictions on disclosure of information)—
a
omit sub-paragraphs (f) and (g) (which refer to the Restrictive Trade Practices Act 1976 and the M41Resale Prices Act 1976);
b
after sub-paragraph (t), add—
u
the Competition Act 1998
8
F42At the end of Article 61, insert—
7
Information obtained by the Director in the exercise of functions which are exercisable concurrently with the Director General of Fair Trading under Part I of the Competition Act 1998 is subject to sections 55 and 56 of that Act (disclosure) and not to paragraphs (1) to (6).
9
In Schedule 12, omit paragraph 16 (which amends the M42Restrictive Trade Practices Act 1976).
The Gas (Northern Ireland) Order 1996
I1718
1
The M43Gas (Northern Ireland) Order 1996 is amended as follows.
F732
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
In Article 16, omit paragraph (2) (which falls with the repeal of the Restrictive Trade Practices Act 1976).
4
In Article 18 (modification by order under other statutory provisions)—
a
in paragraph (1), omit sub-paragraph (b) and the “or” immediately before it;
b
in paragraph (3)—
i
after sub-paragraph (a), insert “
or
”
;
ii
omit sub-paragraph (c) and the “or” immediately before it;
c
in paragraph (5), omit “or the 1980 Act”.
5
F43In Article 19 (orders for securing compliance), in paragraph (5), after sub-paragraph (b), omit “or” and after sub-paragraph (c), insert
or
d
that the most appropriate way of proceeding is under the Competition Act 1998.
6
F43In Article 44(4) (general restrictions on disclosure of information)—
a
omit sub-paragraphs (f) and (g) (which refer to the Restrictive Trade Practices Act 1976 and the M44Resale Prices Act 1976);
b
after sub-paragraph (u), add—
v
the Competition Act 1998
7
F44At the end of Article 44, insert—
8
Information obtained by the Director in the exercise of functions which are exercisable concurrently with the Director General of Fair Trading under Part I of the Competition Act 1998 is subject to sections 55 and 56 of that Act (disclosure) and not to paragraphs (1) to (7).
F45SCHEDULE 11 Interpretation of Section 55
Sch. 11 repealed (20.6.2003) by Enterprise Act 2002 (c. 40), ss. 247(j), 279, Sch. 26; S.I. 2003/1397, art. 2(1), Sch. (with art. 6)
F45 Relevant functions
F451
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F45 Designated persons
F452
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SCHEDULE 12 Minor and Consequential Amendments
The Fair Trading Act 1973 (c.41)
I181
1
The Fair Trading Act 1973 is amended as follows.
2
Omit section 4 and Schedule 3 (which make provision in respect of the Monopolies and Mergers Commission).
3
Omit—
a
section 10(2),
b
section 54(5),
c
section 78(3),
d
paragraph 3(1) and (2) of Schedule 8,
(which fall with the repeal of the M45Restrictive Trade Practices Act 1976).
F764
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F765
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F766
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F767
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8
Omit section 45 (power of the Director to require information about complex monopoly situations).
F759
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F9710
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F9711
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F9712
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F9713
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F7414
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15
In section 135(1) (financial provisions)—
a
in the words before paragraph (a) and in paragraph (b), omit “or the Commission”; and
b
omit paragraph (a).
The Energy Act 1976 (c.76)
2
In the Energy Act 1976, omit section 5 (temporary relief from restrictive practices law in relation to certain agreements connected with petroleum).
The Estate Agents Act 1979 (c.38)
I193
In section 10(3) of the Estate Agents Act 1979 (restriction on disclosure of information), in paragraph (a)—
a
omit “or the M46Restrictive Trade Practices Act 1976”; and
b
after “the M47Coal Industry Act 1994”, insert “
or the Competition Act 1998
”
.
The Competition Act 1980 (c.21)
I204
1
The Competition Act 1980 is amended as follows.
2
In section 11(8) (public bodies and other persons referred to the Commission), omit paragraph (b) and the “and” immediately before it.
3
F77For section 11(9) (which makes provision for certain functions of the Competition Commission under the M48Fair Trading Act 1973 to apply in relation to references under the Competition Act 1980) substitute—
9
The provisions mentioned in subsection (9A) are to apply in relation to a reference under this section as if—
a
the functions of the Competition Commission under this section were functions under the Fair Trading Act 1973;
b
the expression “merger reference” included a reference to the Commission under this section; and
c
in paragraph 20(2)(a) of Schedule 7 to the Competition Act 1998, the reference to section 56 of the Fair Trading Act 1973 were a reference to section 12 below.
9A
The provisions are—
a
sections 70 (time limit for report on merger), 84 (public interest) and 85 (attendance of witnesses and production of documents) of the Fair Trading Act 1973; and
b
Part II of Schedule 7 to the Competition Act 1998 (performance of the Competition Commission’s general functions).
4
F77In section 13 (investigation of prices directed by Secretary of State)—
a
in subsection (1), omit from “but the giving” to the end;
b
for subsection (6) substitute—
6
For the purposes of an investigation under this section the Director may, by notice in writing signed by him—
a
require any person to produce—
i
at a time and a place specified in the notice,
ii
to the Director or to any person appointed by him for the purpose,
any documents which are specified or described in the notice and which are documents in his custody or under his control and relating to any matter relevant to the investigation; or
b
require any person carrying on any business to—
i
furnish to the Director such estimates, forecasts, returns or other information as may be specified or described in the notice; and
ii
specify the time, manner and form in which any such estimates, forecasts, returns or information are to be furnished.
7
No person shall be compelled, for the purpose of any investigation under this section—
a
to produce any document which he could not be compelled to produce in civil proceedings before the High Court or, in Scotland, the Court of Session; or
b
in complying with any requirement for the furnishing of information, to give any information which he could not be compelled to give in evidence in such proceedings.
8
Subsections (6) to (8) of section 85 of theM49Fair Trading Act 1973 (enforcement provisions relating to notices requiring production of documentsetc.) shall apply in relation to a notice under subsection (6) above as they apply in relation to a notice under section 85(1) but as if, in section 85(7), for the words from “any one” to “the Commission” there were substituted “the Director.”
5
In section 15 (special provisions for agricultural schemes) omit subsections (2)(b), (3) and (4).
6
In section 16 (reports), omit subsection (3).
7
In section 17 (publication etc. of reports)—
a
in subsections (1) and (3) to (5), omit “8(1)”;
b
in subsection (2), omit “8(1) or”; and
c
in subsection (6), for “sections 9, 10 or” substitute “
section
”
.
8
In section 19(3) (restriction on disclosure of information), omit paragraphs (d) and (e).
9
In section 19(3), after paragraph (q), insert—
r
the Competition Act 1998
10
In section 19(5)(a), omit “or in anything published under section 4(2)(a) above”.
11
Omit section 22 (which amends the M50Fair Trading Act 1973).
F7812
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
13
Omit sections 25 to 30 (amendments of the M51Restrictive Trade Practices Act 1976).
14
In section 31 (orders and regulations)—
a
omit subsection (2); and
b
in subsection (3), omit “10”.
15
In section 33 (short title etc)—
F79a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
omit subsections (3) and (4).
Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26))
5
In Schedule 6 to the Magistrates’ Courts (Northern Ireland) Order 1981, omit paragraphs 42 and 43 (which amend the Restrictive Trade Practices Act 1976).
Agricultural Marketing (Northern Ireland) Order 1982 (S.I. 1982/1080 (N.I. 12))
I216
In Schedule 8 to the Agricultural Marketing (Northern Ireland) Order 1982—
a
omit the entry relating to paragraph 16(2) of Schedule 3 to the M52Fair Trading Act 1973; and
b
in the entry relating to the M53Competition Act 1980—
i
for “sections” substitute “
section
”
;
ii
omit “and 15(3)”.
The Airports Act 1986 (c.31)
F807
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F139...
Sch. 12 para. 8 and cross-heading repealed (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 19 (with Sch. 20); S.I. 2013/423, art. 3, Sch.
8
In Schedule 11 to the Financial Services Act 1986, in paragraph 12—
a
in sub-paragraph (1), omit “126”;
b
omit sub-paragraph (2).
The Companies Consolidation (Consequential Provisions)(Northern Ireland) Order 1986 (S.I. 1986/1035 (N.I. 9))
9
The Consumer Protection Act 1987 (c.43)
I2210
In section 38(3) of the Consumer Protection Act 1987 (restrictions on disclosure of information)—
a
omit paragraphs (e) and (f); and
b
after paragraph (o), insert—
p
the Competition Act 1998.
The Channel Tunnel Act 1987 (c.53)
F8111
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Road Traffic (Consequential Provisions) Act 1988 (c.54)
12
In Schedule 3 to the Road Traffic (Consequential Provisions) Act 1988 (consequential amendments), omit paragraph 19.
The Companies Act 1989 (c.40)
13
In Schedule 20 to the Companies Act 1989 (amendments about mergers and related matters), omit paragraphs 21 to 24.
The Broadcasting Act 1990 (c.42)
F8214
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Tribunals and Inquiries Act 1992 (c.53)
15
In Schedule 1 to the Tribunals and Inquiries Act 1992 (tribunals under the supervision of the Council on Tribunals), after paragraph 9, insert—
Competition
9A. An appeal tribunal established under section 48 of the Competition Act 1998.
The Osteopaths Act 1993 (c.21)
F8316
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Chiropractors Act 1994 (c.17)
F8417
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Coal Industry Act 1994 (c.21)
I2318
In section 59(4) of the Coal Industry Act 1994 (information to be kept confidential by the Coal Authority)—
a
omit paragraphs (e) and (f); and
b
after paragraph (m), insert—
n
the Competition Act 1998.
The Deregulation and Contracting Out Act 1994 (c.40)
19
1
The Deregulation and Contracting Out Act 1994 is amended as follows.
2
Omit—
a
section 10 (restrictive trade practices: non-notifiable agreements); and
b
section 11 (registration of commercially sensitive information).
3
In section 12 (anti-competitive practices: competition references), omit subsections (1) to (6).
4
In Schedule 4, omit paragraph 1.
5
In Schedule 11 (miscellaneous deregulatory provisions: consequential amendments), in paragraph 4, omit sub-paragraphs (3) to (7).
The Airports (Northern Ireland) Order 1994 (S.I. 1994/426 (N.I. 1))
F8520
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Broadcasting Act 1996 (c.55)
21
In section 77 of the Broadcasting Act 1996 (which modifies the Restrictive Trade Practices Act 1976 in its application to agreements relating to Channel 3 news provision), omit subsection (2).
SCHEDULE 13 Transitional Provisions and Savings
Part I General
Interpretation
1
1
In this Schedule—
“RPA” means the M56Resale Prices Act 1976;
“RTPA” means the Restrictive Trade Practices Act 1976;
“continuing proceedings” has the meaning given by paragraph 15;
“the Court” means the Restrictive Practices Court;
“Director” means the Director General of Fair Trading;
“document” includes information recorded in any form;
“enactment date” means the date on which this Act is passed;
“information” includes estimates and forecasts;
“interim period” means the period beginning on the enactment date and ending immediately before the starting date;
“prescribed” means prescribed by an order made by the Secretary of State;
“regulator” means any person mentioned in paragraphs (a) to (g) of paragraph 1 of Schedule 10 F4and the Civil Aviation Authority;
“starting date” means the date on which section 2 comes into force;
“transitional period” means the transitional period provided for in Chapters III and IV of Part IV of this Schedule.
2
Sections 30, 44, 51, 53, 55, 56, 57 and 59(3) and (4) and paragraph 12 of Schedule 9 (“the applied provisions”) apply for the purposes of this Schedule as they apply for the purposes of Part I of this Act.
3
Section 2(5) applies for the purposes of any provisions of this Schedule which are concerned with the operation of the Chapter I prohibition as it applies for the purposes of Part I of this Act.
4
In relation to any of the matters in respect of which a regulator may exercise powers as a result of paragraph 35(1), the applied provisions are to have effect as if references to the Director included references to the regulator.
5
The fact that to a limited extent the Chapter I prohibition does not apply to an agreement, because a transitional period is provided by virtue of this Schedule, does not require those provisions of the agreement in respect of which there is a transitional period to be disregarded when considering whether the agreement infringes the prohibition for other reasons.
General power to make transitional provision and savings
2
1
Nothing in this Schedule affects the power of the Secretary of State under section 75 to make transitional provisions or savings.
2
An order under that section may modify any provision made by this Schedule.
Advice and information
C73
1
The Director may publish advice and information explaining provisions of this Schedule to persons who are likely to be affected by them.
2
Any advice or information published by the Director under this paragraph is to be published in such form and manner as he considers appropriate.
Part II During the Interim Period
Block exemptions
4
1
The Secretary of State may, at any time during the interim period, make one or more orders for the purpose of providing block exemptions which are effective on the starting date.
2
An order under this paragraph has effect as if properly made under section 6.
Certain agreements to be non-notifiable agreements
5
An agreement which—
a
is made during the interim period, and
b
satisfies the conditions set out in paragraphs (a), (c) and (d) of section 27A(1) of the RTPA,
is to be treated as a non-notifiable agreement for the purposes of the RTPA.
Application of RTPA during the interim period
6
In relation to agreements made during the interim period—
a
the Director is no longer under the duty to take proceedings imposed by section 1(2)(c) of the RTPA but may continue to do so;
b
section 21 of that Act has effect as if subsections (1) and (2) were omitted; and
c
section 35(1) of that Act has effect as if the words “or within such further time as the Director may, upon application made within that time, allow” were omitted.
Guidance
C87
1
Sub-paragraphs (2) to (4) apply in relation to agreements made during the interim period.
2
An application may be made to the Director in anticipation of the coming into force of section 13 in accordance with directions given by the Director and such an application is to have effect on and after the starting date as if properly made under section 13.
3
The Director may, in response to such an application—
a
give guidance in anticipation of the coming into force of section 2; or
b
on and after the starting date, give guidance under section 15 as if the application had been properly made under section 13.
4
Any guidance so given is to have effect on and after the starting date as if properly given under section 15.
Part III On the Starting Date
Applications which fall
8
1
Proceedings in respect of an application which is made to the Court under any of the provisions mentioned in sub-paragraph (2), but which is not determined before the starting date, cease on that date.
2
The provisions are—
a
sections 2(2), 35(3), 37(1) and 40(1) of the RTPA and paragraph 5 of Schedule 4 to that Act;
b
section 4(1) of the RTPA so far as the application relates to an order under section 2(2) of that Act; and
c
section 25(2) of the RPA.
3
The power of the Court to make an order for costs in relation to any proceedings is not affected by anything in this paragraph or by the repeals made by section 1.
Orders and approvals which fall
9
1
An order in force immediately before the starting date under—
a
section 2(2), 29(1), 30(1), 33(4), 35(3) or 37(1) of the RTPA; or
b
section 25(2) of the RPA,
ceases to have effect on that date.
2
An approval in force immediately before the starting date under section 32 of the RTPA ceases to have effect on that date.
Part IV On and After the Starting Date
Chapter I General
Duty of Director to maintain register etc.
I2410
1
This paragraph applies even though the relevant provisions of the RTPA are repealed by this Act.
2
The Director is to continue on and after the starting date to be under the duty imposed by section 1(2)(a) of the RTPA to maintain a register in respect of agreements—
a
particulars of which are, on the starting date, entered or filed on the register;
b
which fall within sub-paragraph (4);
c
which immediately before the starting date are the subject of proceedings under the RTPA which do not cease on that date by virtue of this Schedule; or
d
in relation to which a court gives directions to the Director after the starting date in the course of proceedings in which a question arises as to whether an agreement was, before that date—
i
one to which the RTPA applied;
ii
subject to registration under that Act;
iii
a non-notifiable agreement for the purposes of that Act.
3
The Director is to continue on and after the starting date to be under the duties imposed by section 1(2)(a) and (b) of the RTPA of compiling a register of agreements and entering or filing certain particulars in the register, but only in respect of agreements of a kind referred to in paragraph (b), (c) or (d) of sub-paragraph (2).
4
An agreement falls within this sub-paragraph if—
a
it is subject to registration under the RTPA but—
i
is not a non-notifiable agreement within the meaning of section 27A of the RTPA, or
ii
is not one to which paragraph 5 applies;
b
particulars of the agreement have been provided to the Director before the starting date; and
c
as at the starting date no entry or filing has been made in the register in respect of the agreement.
5
Sections 23 and 27 of the RTPA are to apply after the starting date in respect of the register subject to such modifications, if any, as may be prescribed.
6
In sub-paragraph (2)(d) “court” means—
a
the High Court;
b
the Court of Appeal;
c
the Court of Session;
d
the High Court or Court of Appeal in Northern Ireland; or
F131e
the Supreme Court.
RTPA section 3 applications
I2511
1
Even though section 3 of the RTPA is repealed by this Act, its provisions (and so far as necessary that Act) are to continue to apply, with such modifications (if any) as may be prescribed—
a
in relation to a continuing application under that section; or
b
so as to allow an application to be made under that section on or after the starting date in respect of a continuing application under section 1(3) of the RTPA.
2
“Continuing application” means an application made, but not determined, before the starting date.
RTPA section 26 applications
I2612
1
Even though section 26 of the RTPA is repealed by this Act, its provisions (and so far as necessary that Act) are to continue to apply, with such modifications (if any) as may be prescribed, in relation to an application which is made under that section, but not determined, before the starting date.
2
If an application under section 26 is determined on or after the starting date, this Schedule has effect in relation to the agreement concerned as if the application had been determined immediately before that date.
Right to bring civil proceedings
13
1
Even though section 35 of the RTPA is repealed by this Act, its provisions (and so far as necessary that Act) are to continue to apply in respect of a person who, immediately before the starting date, has a right by virtue of section 27ZA or 35(2) of that Act to bring civil proceedings in respect of an agreement (but only so far as that right relates to any period before the starting date or, where there are continuing proceedings, the determination of the proceedings).
2
Even though section 25 of the RPA is repealed by this Act, the provisions of that section (and so far as necessary that Act) are to continue to apply in respect of a person who, immediately before the starting date, has a right by virtue of subsection (3) of that section to bring civil proceedings (but only so far as that right relates to any period before the starting date or, where there are continuing proceedings, the determination of the proceedings).
Chapter II Continuing Proceedings
The general rule
14
1
The Chapter I prohibition does not apply to an agreement at any time when the agreement is the subject of continuing proceedings under the RTPA.
2
The Chapter I prohibition does not apply to an agreement relating to goods which are the subject of continuing proceedings under section 16 or 17 of the RPA to the extent to which the agreement consists of exempt provisions.
3
In sub-paragraph (2) “exempt provisions” means those provisions of the agreement which would, disregarding section 14 of the RPA, be—
a
void as a result of section 9(1) of the RPA; or
b
unlawful as a result of section 9(2) or 11 of the RPA.
4
If the Chapter I prohibition does not apply to an agreement because of this paragraph, the provisions of, or made under, the RTPA or the RPA are to continue to have effect in relation to the agreement.
5
The repeals made by section 1 do not affect—
a
continuing proceedings; or
b
proceedings of the kind referred to in paragraph 11 or 12 of this Schedule which are continuing after the starting date.
Meaning of “continuing proceedings”
15
1
For the purposes of this Schedule “continuing proceedings” means proceedings in respect of an application made to the Court under the RTPA or the RPA, but not determined, before the starting date.
2
But proceedings under section 3 or 26 of the RTPA to which paragraph 11 or 12 applies are not continuing proceedings.
3
The question whether (for the purposes of Part III, or this Part, of this Schedule) an application has been determined is to be decided in accordance with sub-paragraphs (4) and (5).
4
If an appeal against the decision on the application is brought, the application is not determined until—
a
the appeal is disposed of or withdrawn; or
b
if as a result of the appeal the case is referred back to the Court—
i
the expiry of the period within which an appeal (“the further appeal”) in respect of the Court’s decision on that reference could have been brought had this Act not been passed; or
ii
if later, the date on which the further appeal is disposed of or withdrawn.
5
Otherwise, the application is not determined until the expiry of the period within which any party to the application would have been able to bring an appeal against the decision on the application had this Act not been passed.
RTPA section 4 proceedings
16
Proceedings on an application for an order under section 4 of the RTPA are also continuing proceedings if—
a
leave to make the application is applied for before the starting date but the proceedings in respect of that application for leave are not determined before that date; or
b
leave to make an application for an order under that section is granted before the starting date but the application itself is not made before that date.
RPA section 16 or 17 proceedings
17
Proceedings on an application for an order under section 16 or 17 of the RPA are also continuing proceedings if—
a
leave to make the application is applied for before the starting date but the proceedings in respect of that application for leave are not determined before that date; or
b
leave to make an application for an order under section 16 or 17 of the RPA is granted before the starting date, but the application itself is not made before that date.
Continuing proceedings which are discontinued
18
1
On an application made jointly to the Court by all the parties to any continuing proceedings, the Court must, if it is satisfied that the parties wish it to do so, discontinue the proceedings.
2
If, on an application under sub-paragraph (1) or for any other reason, the Court orders the proceedings to be discontinued, this Schedule has effect (subject to paragraphs 21 and 22) from the date on which the proceedings are discontinued as if they had never been instituted.
Chapter III The Transitional Period
The general rule
I2719
1
Except where this Chapter or Chapter IV provides otherwise, there is a transitional period, beginning on the starting date and lasting for one year, for any agreement made before the starting date.
2
The Chapter I prohibition does not apply to an agreement to the extent to which there is a transitional period for the agreement.
C93
The Secretary of State may by regulations provide for sections 13 to 16 and Schedule 5 to apply with such modifications (if any) as may be specified in the regulations, in respect of applications to the Director about agreements for which there is a transitional period.
Cases for which there is no transitional period
20
1
There is no transitional period for an agreement to the extent to which, immediately before the starting date, it is—
a
void under section 2(1) or 35(1)(a) of the RTPA;
b
the subject of an order under section 2(2) or 35(3) of the RTPA; or
c
unlawful under section 1, 2 or 11 of the RPA or void under section 9 of that Act.
2
There is no transitional period for an agreement to the extent to which, before the starting date, a person has acted unlawfully for the purposes of section 27ZA(2) or (3) of the RTPA in respect of the agreement.
3
There is no transitional period for an agreement to which paragraph 25(4) applies.
4
There is no transitional period for—
a
an agreement in respect of which there are continuing proceedings, or
b
an agreement relating to goods in respect of which there are continuing proceedings,
to the extent to which the agreement is, when the proceedings are determined, void or unlawful.
Continuing proceedings under the RTPA
21
In the case of an agreement which is the subject of continuing proceedings under the RTPA, the transitional period begins—
a
if the proceedings are discontinued, on the date of discontinuance;
b
otherwise, when the proceedings are determined.
Continuing proceedings under the RPA
22
1
In the case of an agreement relating to goods which are the subject of continuing proceedings under the RPA, the transitional period for the exempt provisions of the agreement begins—
a
if the proceedings are discontinued, on the date of discontinuance;
b
otherwise, when the proceedings are determined.
2
In sub-paragraph (1) “exempt provisions” has the meaning given by paragraph 14(3).
Provisions not contrary to public interest
23
1
To the extent to which an agreement contains provisions which, immediately before the starting date, are provisions which the Court has found not to be contrary to the public interest, the transitional period lasts for five years.
2
Sub-paragraph (1) is subject to paragraph 20(4).
3
To the extent to which an agreement which on the starting date is the subject of continuing proceedings is, when the proceedings are determined, found by the Court not to be contrary to the public interest, the transitional period lasts for five years.
Goods
24
1
In the case of an agreement relating to goods which, immediately before the starting date, are exempt under section 14 of the RPA, there is a transitional period for the agreement to the extent to which it consists of exempt provisions.
2
Sub-paragraph (1) is subject to paragraph 20(4).
3
In the case of an agreement relating to goods—
a
which on the starting date are the subject of continuing proceedings, and
b
which, when the proceedings are determined, are found to be exempt under section 14 of the RPA,
there is a transitional period for the agreement, to the extent to which it consists of exempt provisions.
4
In each case, the transitional period lasts for five years.
5
In sub-paragraphs (1) and (3) “exempt provisions” means those provisions of the agreement which would, disregarding section 14 of the RPA, be—
a
void as a result of section 9(1) of the RPA; or
b
unlawful as a result of section 9(2) or 11 of the RPA.
Transitional period for certain agreements
25
1
This paragraph applies to agreements—
a
which are subject to registration under the RTPA but which—
i
are not non-notifiable agreements within the meaning of section 27A of the RTPA, or
ii
are not agreements to which paragraph 5 applies; and
b
in respect of which the time for furnishing relevant particulars as required by or under the RTPA expires on or after the starting date.
2
“Relevant particulars” means—
a
particulars which are required to be furnished by virtue of section 24 of the RTPA; or
b
particulars of any variation of an agreement which are required to be furnished by virtue of sections 24 and 27 of the RTPA.
3
There is a transitional period of one year for an agreement to which this paragraph applies if—
a
relevant particulars are furnished before the starting date; and
b
no person has acted unlawfully (for the purposes of section 27ZA(2) or (3) of the RTPA) in respect of the agreement.
4
If relevant particulars are not furnished by the starting date, section 35(1)(a) of the RTPA does not apply in relation to the agreement (unless sub-paragraph (5) applies).
5
This sub-paragraph applies if a person falling within section 27ZA(2) or (3) of the RTPA has acted unlawfully for the purposes of those subsections in respect of the agreement.
Special cases
26
1
In the case of an agreement in respect of which—
F140a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
a direction under section 194A(3) of the M57Broadcasting Act 1990 (“the 1990 Act”) is in force immediately before the starting date,
the transitional period lasts for five years.
F1412
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
Sub-paragraphs (1) F142... do not affect the power of—
F143a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
the Secretary of State to make a declaration under section 194A of the 1990 Act (as amended by Schedule 2 to this Act),
in respect of an agreement for which there is a transitional period.
Chapter IV The Utilities
General
27
In this Chapter “the relevant period” means the period beginning with the starting date and ending immediately before the fifth anniversary of that date.
Electricity
28
1
For an agreement to which, immediately before the starting date, the RTPA does not apply by virtue of a section 100 order, there is a transitional period—
a
beginning on the starting date; and
b
ending at the end of the relevant period.
2
For an agreement which is made at any time after the starting date and to which, had the RTPA not been repealed, that Act would not at the time at which the agreement is made have applied by virtue of a section 100 order, there is a transitional period—
a
beginning on the date on which the agreement is made; and
b
ending at the end of the relevant period.
3
For an agreement (whether made before or after the starting date) which, during the relevant period, is varied at any time in such a way that it becomes an agreement which, had the RTPA not been repealed, would at that time have been one to which that Act did not apply by virtue of a section 100 order, there is a transitional period—
a
beginning on the date on which the variation is made; and
b
ending at the end of the relevant period.
4
If an agreement for which there is a transitional period as a result of sub-paragraph (1), (2) or (3) is varied during the relevant period, the transitional period for the agreement continues if, had the RTPA not been repealed, the agreement would have continued to be one to which that Act did not apply by virtue of a section 100 order.
5
But if an agreement for which there is a transitional period as a result of sub-paragraph (1), (2) or (3) ceases to be one to which, had it not been repealed, the RTPA would not have applied by virtue of a section 100 order, the transitional period ends on the date on which the agreement so ceases.
6
Sub-paragraph (3) is subject to paragraph 20.
7
In this paragraph and paragraph 29—
“section 100 order” means an order made under section 100 of the M58Electricity Act 1989; and
expressions which are also used in Part I of the Electricity Act 1989 have the same meaning as in that Part.
Electricity: power to make transitional orders
29
1
There is a transitional period for an agreement (whether made before or after the starting date) relating to the generation, transmission or supply of electricity which—
a
is specified, or is of a description specified, in an order (“a transitional order”) made by the Secretary of State (whether before or after the making of the agreement but before the end of the relevant period); and
b
satisfies such conditions as may be specified in the order.
2
A transitional order may make provision as to when the transitional period in respect of such an agreement is to start or to be deemed to have started.
3
The transitional period for such an agreement ends at the end of the relevant period.
4
But if the agreement—
a
ceases to be one to which a transitional order applies, or
b
ceases to satisfy one or more of the conditions specified in the transitional order,
the transitional period ends on the date on which the agreement so ceases.
5
Before making a transitional order, the Secretary of State must consult the Director General of Electricity Supply and the Director.
6
The conditions specified in a transitional order may include conditions which refer any matter to the Secretary of State for determination after such consultation as may be so specified.
7
In the application of this paragraph to Northern Ireland, the reference in sub-paragraph (5) to the Director General of Electricity Supply is to be read as a reference to the Director General of Electricity Supply for Northern Ireland.
Gas
30
1
For an agreement to which, immediately before the starting date, the RTPA does not apply by virtue of section 62 or a section 62 order, there is a transitional period—
a
beginning on the starting date; and
b
ending at the end of the relevant period.
2
For an agreement which is made at any time after the starting date and to which, had the RTPA not been repealed, that Act would not at the time at which the agreement is made have applied by virtue of section 62 or a section 62 order, there is a transitional period—
a
beginning on the date on which the agreement is made; and
b
ending at the end of the relevant period.
3
For an agreement (whether made before or after the starting date) which, during the relevant period, is varied at any time in such a way that it becomes an agreement which, had the RTPA not been repealed, would at that time have been one to which that Act did not apply by virtue of section 62 or a section 62 order, there is a transitional period—
a
beginning on the date on which the variation is made; and
b
ending at the end of the relevant period.
4
If an agreement for which there is a transitional period as a result of sub-paragraph (1), (2) or (3) is varied during the relevant period, the transitional period for the agreement continues if, had the RTPA not been repealed, the agreement would have continued to be one to which that Act did not apply by virtue of section 62 or a section 62 order.
5
But if an agreement for which there is a transitional period as a result of sub-paragraph (1), (2) or (3) ceases to be one to which, had it not been repealed, the RTPA would not have applied by virtue of section 62 or a section 62 order, the transitional period ends on the date on which the agreement so ceases.
6
Sub-paragraph (3) also applies in relation to a modification which is treated as an agreement made on or after 28th November 1985 by virtue of section 62(4).
7
Sub-paragraph (3) is subject to paragraph 20.
8
In this paragraph and paragraph 31—
“section 62” means section 62 of the M59Gas Act 1986;
“section 62 order” means an order made under section 62.
Gas: power to make transitional orders
31
1
There is a transitional period for an agreement of a description falling within section 62(2)(a) and (b) or section 62(2A)(a) and (b) which—
a
is specified, or is of a description specified, in an order (“a transitional order”) made by the Secretary of State (whether before or after the making of the agreement but before the end of the relevant period); and
b
satisfies such conditions as may be specified in the order.
2
A transitional order may make provision as to when the transitional period in respect of such an agreement is to start or to be deemed to have started.
3
The transitional period for such an agreement ends at the end of the relevant period.
4
But if the agreement—
a
ceases to be one to which a transitional order applies, or
b
ceases to satisfy one or more of the conditions specified in the transitional order,
the transitional period ends on the date when the agreement so ceases.
5
Before making a transitional order, the Secretary of State must consult the Director General of Gas Supply and the Director.
6
The conditions specified in a transitional order may include—
a
conditions which are to be satisfied in relation to a time before the coming into force of this paragraph;
b
conditions which refer any matter (which may be the general question whether the Chapter I prohibition should apply to a particular agreement) to the Secretary of State, the Director or the Director General of Gas Supply for determination after such consultation as may be so specified.
Gas: Northern Ireland
32
1
For an agreement to which, immediately before the starting date, the RTPA does not apply by virtue of an Article 41 order, there is a transitional period—
a
beginning on the starting date; and
b
ending at the end of the relevant period.
2
For an agreement which is made at any time after the starting date and to which, had the RTPA not been repealed, that Act would not at the time at which the agreement is made have applied by virtue of an Article 41 order, there is a transitional period—
a
beginning on the date on which the agreement is made; and
b
ending at the end of the relevant period.
3
For an agreement (whether made before or after the starting date) which, during the relevant period, is varied at any time in such a way that it becomes an agreement which, had the RTPA not been repealed, would at that time have been one to which that Act did not apply by virtue of an Article 41 order, there is a transitional period—
a
beginning on the date on which the variation is made; and
b
ending at the end of the relevant period.
4
If an agreement for which there is a transitional period as a result of sub-paragraph (1), (2) or (3) is varied during the relevant period, the transitional period for the agreement continues if, had the RTPA not been repealed, the agreement would have continued to be one to which that Act did not apply by virtue of an Article 41 order.
5
But if an agreement for which there is a transitional period as a result of sub-paragraph (1), (2) or (3) ceases to be one to which, had it not been repealed, the RTPA would not have applied by virtue of an Article 41 order, the transitional period ends on the date on which the agreement so ceases.
6
Sub-paragraph (3) is subject to paragraph 20.
7
In this paragraph and paragraph 33—
“Article 41 order” means an order under Article 41 of the M60Gas (Northern Ireland) Order 1996;
“Department” means the Department of Economic Development.
Gas: Northern Ireland – power to make transitional orders
33
1
There is a transitional period for an agreement of a description falling within Article 41(1) which—
a
is specified, or is of a description specified, in an order (“a transitional order”) made by the Department (whether before or after the making of the agreement but before the end of the relevant period); and
b
satisfies such conditions as may be specified in the order.
2
A transitional order may make provision as to when the transitional period in respect of such an agreement is to start or to be deemed to have started.
3
The transitional period for such an agreement ends at the end of the relevant period.
4
But if the agreement—
a
ceases to be one to which a transitional order applies, or
b
ceases to satisfy one or more of the conditions specified in the transitional order,
the transitional period ends on the date when the agreement so ceases.
5
Before making a transitional order, the Department must consult the Director General of Gas for Northern Ireland and the Director.
6
The conditions specified in a transitional order may include conditions which refer any matter (which may be the general question whether the Chapter I prohibition should apply to a particular agreement) to the Department for determination after such consultation as may be so specified.
Railways
34
1
In this paragraph—
“section 131” means section 131 of the M61Railways Act 1993 (“the 1993 Act”);
“section 131 agreement” means an agreement—
- a
to which the RTPA does not apply immediately before the starting date by virtue of section 131(1); or
- b
in respect of which a direction under section 131(3) is in force immediately before that date;
- a
“non-exempt agreement” means an agreement relating to the provision of railway services (whether made before or after the starting date) which is not a section 131 agreement; and
“railway services” has the meaning given by section 82 of the 1993 Act.
2
For a section 131 agreement there is a transitional period of five years.
3
There is a transitional period for a non-exempt agreement to the extent to which the agreement is at any time before the end of the relevant period required or approved—
a
by the Secretary of State or the Rail Regulator in pursuance of any function assigned or transferred to him under or by virtue of any provision of the 1993 Act;
b
by or under any agreement the making of which is required or approved by the Secretary of State or the Rail Regulator in the exercise of any such function; or
c
by or under a licence granted under Part I of the 1993 Act.
4
The transitional period conferred by sub-paragraph (3)—
a
is to be taken to have begun on the starting date; and
b
ends at the end of the relevant period.
5
Sub-paragraph (3) is subject to paragraph 20.
6
Any variation of a section 131 agreement on or after the starting date is to be treated, for the purposes of this paragraph, as a separate non-exempt agreement.
The regulators
35
1
Subject to sub-paragraph (3), each of the regulators may exercise, in respect of sectoral matters and concurrently with the Director, the functions of the Director under paragraph 3, 7, 19(3), 36, 37, 38 or 39.
2
In sub-paragraph (1) “sectoral matters” means—
F93a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
in the case of the Director General of Gas Supply, the matters referred to in section 36A(3) and (4) of the M62Gas Act 1986;
c
in the case of the Director General of Electricity Supply, the matters referred to in section 43(3) of the M63Electricity Act 1989;
d
in the case of the Director General of Electricity Supply for Northern Ireland, the matters referred to in Article 46(3) of the M64Electricity (Northern Ireland) Order 1992;
e
f
in the case of the Rail Regulator, the matters referred to in section 67(3) of the M66Railways Act 1993;
g
in the case of the Director General of Gas for Northern Ireland, the matters referred to in Article 23(3) of the M67Gas (Northern Ireland) Order 1996.
F5h
in the case of the Civil Aviation Authority, the supply of air traffic services within the meaning given by section 98 of the Transport Act 2000.
3
The power to give directions in paragraph 7(2) is exercisable by the Director only but if the Director is preparing directions which relate to a matter in respect of which a regulator exercises concurrent jurisdiction, he must consult that regulator.
4
Consultations conducted by the Director before the enactment date, with a view to preparing directions which have effect on or after that date, are to be taken to satisfy sub-paragraph (3).
5
References to enactments in sub-paragraph (2) are to the enactments as amended by or under this Act.
Chapter V Extending the transitional period
C1036
1
A party to an agreement for which there is a transitional period may apply to the Director, not less than three months before the end of the period, for the period to be extended.
2
The Director may (on his own initiative or on an application under sub-paragraph (1))—
a
extend a one-year transitional period by not more than twelve months;
b
extend a transitional period of any period other than one year by not more than six months.
3
An application under sub-paragraph (1) must—
a
be in such form as may be specified; and
b
include such documents and information as may be specified.
4
If the Director extends the transitional period under this paragraph, he must give notice in such form, and to such persons, as may be specified.
5
The Director may not extend a transitional period more than once.
6
In this paragraph—
“person” has the same meaning as in Part I; and
“specified” means specified in rules made by the Director under section 51.
Chapter VI Terminating the Transitional Period
General
C1037
1
Subject to sub-paragraph (2), the Director may by a direction in writing terminate the transitional period for an agreement, but only in accordance with paragraph 38.
2
The Director may not terminate the transitional period, nor exercise any of the powers in paragraph 38, in respect of an agreement which is excluded from the Chapter I prohibition by virtue of any of the provisions of Part I of this Act other than paragraph 1 of Schedule 1 or paragraph 2 or 9 of Schedule 3 F6or the Competition Act 1998 (Land and Vertical Agreements Exclusion) Order 2000.
Circumstances in which the Director may terminate the transitional period
C1038
1
If the Director is considering whether to give a direction under paragraph 37 (“a direction”), he may in writing require any party to the agreement concerned to give him such information in connection with that agreement as he may require.
2
If at the end of such period as may be specified in rules made under section 51, a person has failed, without reasonable excuse, to comply with a requirement imposed under sub-paragraph (1), the Director may give a direction.
3
The Director may also give a direction if he considers—
a
that the agreement would, but for the transitional period or a relevant exclusion, infringe the Chapter I prohibition; and
b
that he would not be likely to grant the agreement an unconditional individual exemption.
4
For the purposes of sub-paragraph (3) an individual exemption is unconditional if no conditions or obligations are imposed in respect of it under section 4(3)(a).
5
In this paragraph—
“person” has the same meaning as in Part I;
“relevant exclusion” means an exclusion under paragraph 1 of Schedule 1 or paragraph 2 or 9 of Schedule 3 F7or the Competition Act 1998 (Land and Vertical Agreements Exclusion) Order 2000.
Procedural requirements on giving a paragraph 37 direction
C1039
1
The Director must specify in a direction under paragraph 37 (“a direction”) the date on which it is to have effect (which must not be less than 28 days after the direction is given).
2
Copies of the direction must be given to—
a
each of the parties concerned, and
b
the Secretary of State,
not less than 28 days before the date on which the direction is to have effect.
3
In relation to an agreement to which a direction applies, the transitional period (if it has not already ended) ends on the date specified in the direction unless, before that date, the direction is revoked by the Director or the Secretary of State.
4
If a direction is revoked, the Director may give a further direction in respect of the same agreement only if he is satisfied that there has been a material change of circumstance since the revocation.
5
If, as a result of paragraph 24(1) or (3), there is a transitional period in respect of provisions of an agreement relating to goods—
a
which immediately before the starting date are exempt under section 14 of the RPA, or
b
which, when continuing proceedings are determined, are found to be exempt under section 14 of the RPA,
the period is not affected by paragraph 37 or 38.
Part V The Fair Trading Act 1973
References to the Monopolies and Mergers Commission
40
1
If, on the date on which the repeal by this Act of a provision mentioned in sub-paragraph (2) comes into force, the Monopolies and Mergers Commission has not completed a reference which was made to it before that date, continued consideration of the reference may include consideration of a question which could not have been considered if the provision had not been repealed.
2
The provisions are—
a
sections 10(2), 54(5) and 78(3) and paragraph 3(1) and (2) of Schedule 8 to the Fair Trading Act 1973 (c. 41);
b
section 11(8)(b) of the Competition Act 1980 (c. 21);
c
section 14(2) of the Telecommunications Act 1984 (c. 12);
d
section 45(3) of the Airports Act 1986 (c. 31);
e
section 25(2) of the Gas Act 1986 (c. 44);
f
section 13(2) of the Electricity Act 1989 (c. 29);
g
section 15(2) of the Water Industry Act 1991 (c. 56);
h
article 16(2) of the M68Electricity (Northern Ireland) Order 1992;
i
section 14(2) of the Railways Act 1993 (c. 43);
j
article 36(3) of the M69Airports (Northern Ireland) Order 1994;
k
article 16(2) of the M70Gas (Northern Ireland) Order 1996.
Orders under Schedule 8
41
1
In this paragraph—
“the 1973 Act” means the M71Fair Trading Act 1973;
“agreement” means an agreement entered into before the date on which the repeal of the limiting provisions comes into force;
“the order” means an order under section 56 or 73 of the 1973 Act;
“the limiting provisions” means sub-paragraph (1) or (2) of paragraph 3 of Schedule 8 to the 1973 Act (limit on power to make orders under paragraph 1 or 2 of that Schedule) and includes any provision of the order included because of either of those sub-paragraphs; and
“transitional period” means the period which—
- a
begins on the day on which the repeal of the limiting provisions comes into force; and
- b
ends on the first anniversary of the starting date.
- a
2
Sub-paragraph (3) applies to any agreement to the extent to which it would have been unlawful (in accordance with the provisions of the order) but for the limiting provisions.
3
As from the end of the transitional period, the order is to have effect in relation to the agreement as if the limiting provisions had never had effect.
Part III of the Act
42
1
The repeals made by section 1 do not affect any proceedings in respect of an application which is made to the Court under Part III of the M72Fair Trading Act 1973, but is not determined, before the starting date.
2
The question whether (for the purposes of sub-paragraph (1)) an application has been determined is to be decided in accordance with sub-paragraphs (3) and (4).
3
If an appeal against the decision on the application is brought, the application is not determined until—
a
the appeal is disposed of or withdrawn; or
b
if as a result of the appeal the case is referred back to the Court—
i
the expiry of the period within which an appeal (“the further appeal”) in respect of the Court’s decision on that reference could have been brought had this Act not been passed; or
ii
if later, the date on which the further appeal is disposed of or withdrawn.
4
Otherwise, the application is not determined until the expiry of the period within which any party to the application would have been able to bring an appeal against the decision on the application had this Act not been passed.
5
Any amendment made by Schedule 12 to this Act which substitutes references to a relevant Court for references to the Court is not to affect proceedings of the kind referred to in sub-paragraph (1).
Part VI The Competition Act 1980
Undertakings
43
1
Subject to sub-paragraph (2), an undertaking accepted by the Director under section 4 or 9 of the M73Competition Act 1980 ceases to have effect on the coming into force of the repeal by this Act of that section.
2
If the undertaking relates to an agreement which on the starting date is the subject of continuing proceedings, the undertaking continues to have effect for the purposes of section 29 of the Competition Act 1980 until the proceedings are determined.
Application of sections 25 and 26
44
The repeals made by section 1 do not affect—
a
the operation of section 25 of the Competition Act 1980 in relation to an application under section 1(3) of the RTPA which is made before the starting date;
b
an application under section 26 of the Competition Act 1980 which is made before the starting date.
Part VII Miscellaneous
Disclosure of information
45
1
Section 55 of this Act applies in relation to information which, immediately before the starting date, is subject to section 41 of the RTPA as it applies in relation to information obtained under or as a result of Part I.
2
But section 55 does not apply to any disclosure of information of the kind referred to in sub-paragraph (1) if the disclosure is made—
a
for the purpose of facilitating the performance of functions of a designated person under the M74Control of Misleading Advertisements Regulations 1988; or
b
for the purposes of any proceedings before the Court or of any other legal proceedings under the RTPA or the M75Fair Trading Act 1973 or the Control of Misleading Advertisements Regulations 1988.
3
Section 56 applies in relation to information of the kind referred to in sub-paragraph (1) if particulars containing the information have been entered or filed on the special section of the register maintained by the Director under, or as a result of, section 27 of the RTPA or paragraph 10 of this Schedule.
4
Section 55 has effect, in relation to the matters as to which section 41(2) of the RTPA had effect, as if it contained a provision similar to section 41(2).
The Court
46
If it appears to the Lord Chancellor that a person who ceases to be a non-judicial member of the Court as a result of this Act should receive compensation for loss of office, he may pay to him out of moneys provided by Parliament such sum as he may with the approval of the Treasury determine.
SCHEDULE 14 Repeals and Revocations
I28I30 Part I Repeals
Sch. 14 Pt. I partly in force; Sch. 14 Pt. I not in force at Royal Assent see s. 76(3); Sch. 14 Pt. I in force for certain purposes at 11.1.1999 by S.I. 1998/3166, art. 2, Sch.; Sch. 14 Pt. I in force for certain purposes at 1.4.1999 by S.I. 1999/505, art. 2, Sch. 2; Sch. 14 Pt. I in force for certain purposes at 10.11.1999 by S.I. 1999/2859, art. 2; Sch. 14 Pt. I (except the repeal of Restrictive Practices Court Act 1976) in force at 1.3.2000 by S.I. 2000/344, art. 2, Sch.
Sch. 14 Pt. I in force at 10.3.2013 in so far as not already in force by S.I. 2013/284, art. 2(c)
Chapter | Short title | Extent of repeal |
|---|---|---|
1973 c. 41. | The Fair Trading Act 1973. | Section 4. |
Section 10(2). | ||
Section 45. | ||
Section 54(5). | ||
Section 78(3). | ||
In section 81(1), in the words before paragraph (a), from “and the Commission” to “of this Act)”; in paragraph (b), “or the Commission, as the case may be” and “or of the Commission”; in subsection (2), “or the Commission” and “or of the Commission” and in subsection (3), from “and, in the case,” to “85 of this Act”, and “or the Commission, as the case may be,”. | ||
In section 83, in subsection (1) “Subject to subsection (1A) below” and subsection (1A). | ||
In section 135(1), in the words before paragraph (a) and in paragraph (b), “or the Commission”, and paragraph (a). | ||
Schedule 3. | ||
In Schedule 8, paragraph 3(1) and (2). | ||
1976 c. 33. | The Restrictive Practices Court Act 1976. | The whole Act. |
1976 c. 34. | The Restrictive Trade Practices Act 1976. | The whole Act. |
1976 c. 53. | The Resale Prices Act 1976. | The whole Act. |
1976 c. 76. | The Energy Act 1976. | Section 5. |
1977 c. 19. | The Restrictive Trade Practices Act 1977. | The whole Act. |
1977 c. 37. | The Patents Act 1977. | Sections 44 and 45. |
1979 c. 38. | The Estate Agents Act 1979. | In section 10(3), “or the Restrictive Trade Practices Act 1976.” |
1980 c. 21. | The Competition Act 1980. | Sections 2 to 10. |
In section 11(8), paragraph (b) and the “and” immediately before it. | ||
In section 13(1), from “but the giving” to the end. | ||
In section 15, subsections (2)(b), (3) and (4). | ||
Section 16(3). | ||
In section 17, “8(1)” in subsections (1) and (3) to (5) and in subsection (2) “8(1) or”. | ||
In section 19(3), paragraph (d). | ||
In section 19(5)(a), “or in anything published under section 4(2)(a) above”. | ||
Section 22. | ||
Sections 25 to 30. | ||
In section 31, subsection (2) and “10” in subsection (3). | ||
Section 33(3) and (4). | ||
1984 c. 12. | The Telecommunications Act 1984. | Section 14(2). |
In section 16(5), the “or” immediately after paragraph (a). | ||
In section 50(4), paragraph (c) and the “and” immediately after it. | ||
In section 50(5), “or (3)”. | ||
In section 50(7), “or the 1980 Act”. | ||
In section 95(1), “or section 10(2)(a) of the 1980 Act”. | ||
In section 95(2), paragraph (c) and the “or” immediately before it. | ||
In section 95(3), “or the 1980 Act”. | ||
In section 101(3), paragraphs (d) and (e). | ||
1986 c. 31. | The Airports Act 1986. | Section 45(3). |
In section 54(1), “or section 10(2)(a) of the 1980 Act”. | ||
In section 54(3), paragraph (c) and the “or” immediately before it. | ||
In section 54(4), “or the 1980 Act”. | ||
In section 56(a)(ii), “or the 1980 Act”. | ||
1986 c. 44. | The Gas Act 1986. | Section 25(2). |
In section 27(1), “or section 10(2)(a) of the Competition Act 1980”. | ||
In section 27(3)(a), from “or” to “competition reference”. | ||
In section 27(6), “or the said Act of 1980”. | ||
In section 28(5), the “or” immediately after paragraph (aa). | ||
In section 36A(5), paragraph (d) and the “and” immediately before it. | ||
In section 36A(6), “or (3)”. | ||
In section 36A(8), “or under the 1980 Act”. | ||
In section 36A(9), “or the 1980 Act”. | ||
In section 42(3), paragraphs (e) and (f). | ||
1986 c. 60. | The Financial Services Act 1986. | Section 126. |
1987 c. 43. | The Consumer Protection Act 1987. | In section 38(3), paragraphs (e) and (f). |
1987 c. 53. | The Channel Tunnel Act 1987. | In section 33(2), paragraph (c) and the “and” immediately before it. |
In section 33(5), paragraphs (b) and (c). | ||
1988 c. 54. | The Road Traffic (Consequential Provisions) Act 1988. | In Schedule 3, paragraph 19. |
1989 c. 15. | The Water Act 1989. | In section 174(3), paragraphs (d) and (e). |
1989 c. 29. | The Electricity Act 1989. | Section 13(2). |
In section 15(1), paragraph (b) and the “or” immediately before it. | ||
In section 15(2), paragraph (c) and the “or” immediately before it. | ||
In section 15(3), “or the 1980 Act”. | ||
In section 25(5), the “or” immediately after paragraph (b). | ||
In section 43(4), paragraph (c) and the “and” immediately after it. | ||
In section 43(5), “or (3)”. | ||
In section 43(7), “or the 1980 Act”. | ||
In section 57(3), paragraphs (d) and (e). | ||
1989 c. 40. | The Companies Act 1989. | In Schedule 20, paragraphs 21 to 24. |
1990 c. 42. | The Broadcasting Act 1990. | In section 193(2), paragraph (c) and the “and” immediately before it. |
In section 193(4), “or the Competition Act 1980”. | ||
1991 c. 56. | The Water Industry Act 1991. | In section 12(5), “or the 1980 Act”. |
Section 15(2). | ||
In section 17(1), paragraph (b) and the “or” immediately before it. | ||
In section 17(2), paragraph (c) and the “or” immediately before it. | ||
In section 17(4), “or the 1980 Act”. | ||
In section 31(4), paragraph (c) and the “and” immediately before it. | ||
In section 31(5), “or in subsection (3) above”. | ||
In section 31(6), “or in subsection (3) above”. | ||
In section 31(7), “or (3)”. | ||
In section 31(9), “or the 1980 Act”. | ||
In Part II of Schedule 15, the entries relating to the Restrictive Trade Practices Act 1976 and the Resale Prices Act 1976. | ||
1991 c. 57. | The Water Resources Act 1991. | In Part II of Schedule 24, the entries relating to the Restrictive Trade Practices Act 1976 and the Resale Prices Act 1976. |
1993 c. 21. | The Osteopaths Act 1993. | In section 33(4), paragraph (b) and the “or” immediately before it. |
In section 33(5), “or section 10 of the Act of 1980”. | ||
1993 c. 43. | The Railways Act 1993. | Section 14(2). |
In section 16(1), paragraph (b) and the “or” immediately before it. | ||
In section 16(2), paragraph (c) and the “or” immediately before it. | ||
In section 16(5), “or the 1980 Act”. | ||
In section 67(4), paragraph (c) and the “and” immediately after it. | ||
In section 67(6)(a), “or (3)”. | ||
In section 67(9), “or under the 1980 Act”. | ||
Section 131. | ||
In section 145(3), paragraphs (d) and (e). | ||
1994 c. 17. | The Chiropractors Act 1994. | In section 33(4), paragraph (b) and the “or” immediately before it. |
In section 33(5), “or section 10 of the Act of 1980”. | ||
1994 c. 21. | The Coal Industry Act 1994. | In section 59(4), paragraphs (e) and (f). |
1994 c. 40. | The Deregulation and Contracting Out Act 1994. | Sections 10 and 11. |
In section 12, subsections (1) to (6). | ||
In Schedule 4, paragraph 1. | ||
In Schedule 11, in paragraph 4, sub-paragraphs (3) to (6). | ||
1996 c. 55. | The Broadcasting Act 1996. | Section 77(2). |
I29Part II Revocations
Sch. 14 Pt. II wholly in force; Sch. 14 Pt. II not in force at Royal Assent see s. 76(3); Sch. 14 Pt. II in force for certain purposes at 1.4.1999 by S.I. 1999/505, art. 2, Sch. 2; Sch. 14 Pt. II fully in force at 1.3.2000 by S.I. 2000/344, art. 2, Sch.
Reference | Title | Extent of revocation |
|---|---|---|
S.I. 1981/1675 (N.I.26). | The Magistrates’ Courts (Northern Ireland) Order 1981. | In Schedule 6, paragraphs 42 and 43. |
S.I. 1982/1080 (N.I.12). | The Agricultural Marketing (Northern Ireland) Order 1982. | In Schedule 8, the entry relating to paragraph 16(2) of Schedule 3 to the Fair Trading Act 1973 and in the entry relating to the Competition Act 1980, “and 15(3)”. |
S.I. 1986/1035 (N.I.9). | The Companies Consolidation (Consequential Provisions)(Northern Ireland) Order 1986. | In Part II of Schedule 1, the entries relating to the Restrictive Trade Practices Act 1976 and the Resale Prices Act 1976. |
S.I. 1992/231 (N.I.1). | The Electricity (Northern Ireland) Order 1992. | Article 16(2). |
In Article 18— (a) in paragraph (1), sub-paragraph (b) and the “or” immediately before it; (b) in paragraph (2), sub-paragraph (c) and the “or” immediately before it; (c) in paragraph (3) “or the 1980 Act”. | ||
In Article 28(5), the “or” immediately after sub-paragraph (b). | ||
In Article 46— (a) in paragraph (4), sub-paragraph (c) and the “and” immediately after it; (b) in paragraph (5), “or (3)”; (c) in paragraph (7), “or the 1980 Act”. | ||
Article 61(3)(f) and (g). | ||
In Schedule 12, paragraph 16. | ||
S.I. 1994/426 (N.I.1). | The Airports (Northern Ireland) Order 1994. | Article 36(3). |
In Article 45— (a) in paragraph (1), “or section 10(2)(a) of the 1980 Act”; (b) in paragraph (3), sub-paragraph (c) and the “or” immediately before it; (c) in paragraph (4), “or the 1980 Act”. | ||
In Article 47(a)(ii), “or the 1980 Act”. | ||
In Schedule 9, paragraph 5. | ||
S.I. 1996/275 (N.I.2). | The Gas (Northern Ireland) Order 1996. | Article 16(2). |
In Article 18— (a) in paragraph (1), sub-paragraph (b) and the “or” immediately before it; (b) in paragraph (3), sub-paragraph (c) and the “or” immediately before it; (c) in paragraph (5), “or the 1980 Act”. | ||
In Article 19(5), the “or” immediately after sub-paragraph (b). | ||
In Article 23— (a) in paragraph (4), sub-paragraph (d) and the “and” immediately before it; (b) in paragraph (5), “or (3)”; (c) in paragraph (7), “or under the 1980 Act”; (d) in paragraph (8), “or the 1980 Act”. | ||
Article 44(4)(f) and (g). |
Sch. 2 para. 1 and cross-heading repealed (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 19 (with Sch. 20); S.I. 2013/423, art. 3, Sch.