SCHEDULES
SCHEDULE 11

Approval, imposition and modification of networking arrangements

Competition tests applying to OFCOM’s decisions
6
1
OFCOM must not—
a
approve arrangements or modifications,
b
impose arrangements or modify imposed arrangements, or
c
propose modifications following a review under section 293,
unless they are satisfied that the arrangements, or the arrangements as proposed to be modified, satisfy the first or second competition test.
2
Before making a decision about whether a competition test is satisfied OFCOM must consult the Competition and Markets Authority .
3
Arrangements satisfy the first competition test if they do not have as their object or effect the prevention, restriction or distortion of competition within the United Kingdom.
4
Arrangements satisfy the second competition test if—
a
they do have such an object or effect; but
b
they would satisfy the criteria set out in section 9 of the Competition Act 1998 (c. 41) (agreements contributing to improving the production or distribution of goods or to promoting technical or economic progress).
5
For the purposes of the second competition test, arrangements imposed by OFCOM and modifications of such arrangements are to be treated as if they were given effect to by an agreement between undertakings.
6
Subject to paragraph 6A, in determining whether arrangements or modified arrangements would satisfy either of the competition tests, OFCOM must act with a view to securing that there is no inconsistency between—
a
the principles they apply and the decision they reach; and
b
any principles or decisions referred to in sub-paragraph (7).
7
Those principles and decisions are—
a
the principles laid down by the Treaty on the Functioning of the European Union and the European Court before IP completion day, and any decisions made by that court before IP completion day, that are relevant to the construction of Article 101 of that Treaty; and
b
any decisions under Part 1 of the Competition Act 1998, and any decisions of a court in the United Kingdom, that are relevant to the construction of a provision of that Act that is equivalent to the provisions of this Schedule imposing the competition tests.
7A
In sub-paragraph (7)(a), the reference to principles laid down before IP completion day is a reference to such principles as they have effect in EU law immediately before IP completion day, disregarding the effect of principles laid down, and decisions made, by the European Court on or after IP completion day.
8
In the case of a conditional approval, the requirements of this paragraph have to be satisfied in relation to the arrangements or modified arrangements as they will be after giving effect to the changes proposed by OFCOM.
9
In this paragraph, the “European Court” includes a court attached to the European Court.
Sch. 11 para. 6(7A) inserted (31.12.2020) by The Competition (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/93), reg. 1(1), Sch. 1 para. 11(6) (as amended by S.I. 2020/1343, regs. 1(1), 23(4)); 2020 c. 1, Sch. 5 para. 1(1)
Sch. 11 para. 6 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)
Words in Sch. 11 substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 165 (with art. 3)
Words in Sch. 11 para. 6(6) inserted (31.12.2020) by The Competition (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/93), reg. 1(1), Sch. 1 para. 11(4); 2020 c. 1, Sch. 5 para. 1(1)
Words in Sch. 11 para. 6(7)(a) substituted (31.12.2020) by The Competition (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/93), reg. 1(1), Sch. 1 para. 11(5)(b) (as amended by S.I. 2020/1343, regs. 1(1), 23(3)); 2020 c. 1, Sch. 5 para. 1(1)
Words in Sch. 11 para. 6(7)(a) inserted (31.12.2020) by The Competition (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/93), reg. 1(1), Sch. 1 para. 11(5)(a) (as amended by S.I. 2020/1343, regs. 1(1), 23(3)); 2020 c. 1, Sch. 5 para. 1(1)
Words in Sch. 11 para. 6(7)(a) substituted (1.8.2012) by The Treaty of Lisbon (Changes in Terminology or Numbering) Order 2012 (S.I. 2012/1809), art. 2(1), Sch. Pt. 1 (with art. 2(2))