Part 5

Competition in communications markets
Chapter 1

Functions of OFCOM under competition legislation

OFCOM’s functions under the Competition Act 1998
371
1
The functions to which subsection (2) applies shall be concurrent functions of OFCOM and the Office of Fair Trading.
2
This subsection applies to the functions of the Office of Fair Trading under the provisions of Part 1 of the Competition Act 1998 (other than sections 31D(1) to (6), 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,
b
conduct of the kind mentioned in section 18(1) of that Act,
c
agreements, decisions or concerted practices of the kind mentioned in
Article 101(1) of the Treaty on the Functioning of the European Union
, or
d
conduct which amounts to abuse of the kind mentioned in
Article 102 of the Treaty on the Functioning of the European Union
,
which relate to activities connected with communications matters.
3
So far as necessary for the purposes of, or in connection with, the provisions of subsections (1) and (2), references to the Office of Fair Trading in Part 1 of the Competition Act 1998 are to be read as including references to OFCOM, except—
a
in sections 31D(1) to (6), 38(1) to (6) , 51, 52(6) and (8) and 54, and
b
where the context otherwise requires.
4
In subsection (2), the reference to activities connected with communications matters, so far as it is a reference to activities connected with any apparatus falling within paragraph (d) of section 369(1), includes a reference to—
a
the supply and export of any such apparatus; and
b
the production or acquisition of any such apparatus for supply or export.
5
In section 54 of the Competition Act 1998—
a
in subsection (1)
(definition of “regulator” for the purposes of Part 1 of that Act), for paragraph (a) there shall be substituted—
a
the Office of Communications;
b
in subsection (4)
(power to make regulations about concurrent functions of the Office of Fair Trading and sectoral regulators), “or by Chapter V of Part I of the Transport Act 2000” there shall be inserted “ to this Act, by Chapter 5 of Part 1 of the Transport Act 2000 or by section 371 of the Communications Act 2003 ”.
6
In paragraph 5 of Schedule 2 to the Competition Act 1998 (publication of list of networking arrangements under the 1990 Act excluded from the Chapter 1 prohibition)—
a
in sub-paragraph (2), for “The Independent Television Commission (“ITC”)” there shall be substituted “ OFCOM ”; and
b
in sub-paragraph (3), for “The ITC” there shall be substituted “ OFCOM ”.
7
In section 59(1) of the Competition Act 1998 (interpretation of Part 1), after the definition of “Minister of the Crown” there shall be inserted—
“OFCOM” means the Office of Communications;
.
8
OFCOM may carry out, in respect of activities connected with communications matters and concurrently with the Office of Fair Trading, the functions of the Office of Fair Trading under any of paragraphs 3, 7, 19(3) and 36 to 39 of Schedule 13 to the Competition Act 1998 (transitional provisions).
9
If any question arises as to whether, by virtue of this section, any functions fall to be, or are capable of being, carried out by OFCOM in relation to a particular case, that question shall be referred to and determined by the Secretary of State.
10
No objection shall be taken to anything done under by or in relation to OFCOM under the Competition Act 1998 (c. 41) on the ground that it should have been done by or in relation to the Office of Fair Trading.
11
Subject to subsection (12), section 3 of this Act (general duties) and section 29 of the Postal Services Act 2011 (duty to secure provision of universal postal service) do not apply in relation to anything done by OFCOM in the carrying out of their functions by virtue of this section.
12
In the carrying out of any functions by virtue of this section OFCOM may nevertheless have regard to any of the matters in respect of which a duty is imposed by section 3(1) to (4) of this Act or section 29 of the Postal Services Act 2011 if it is a matter to which the Office of Fair Trading is entitled to have regard in the carrying out of those functions.
S. 371 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))
S. 371 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)
S. 371(2) substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 2 para. 11(2)(a)
Words in s. 371(3)(a) substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 2 para. 11(2)(b)
Words in s. 371(11) substituted (1.10.2011) by Postal Services Act 2011 (c. 5), s. 93(2)(3), Sch. 12 para. 64(2); S.I. 2011/2329, art. 3
Words in s. 371(12) substituted (1.10.2011) by Postal Services Act 2011 (c. 5), s. 93(2)(3), Sch. 12 para. 64(3); S.I. 2011/2329, art. 3
Words in s. 371(2)(c) 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))
Words in s. 371(2)(d) 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))