Condition 31
31.1 The Licensee shall not do anything, whether by act or omission, which has or is intended to have or is likely to have the effect of preventing, restricting or distorting competition where such act or omission is done in the course of, as a result of or in connection with, providing telecommunication services, or any particular description of telecommunication service, or running a telecommunication system.
For the purposes of this Condition such an act or omission will take the form of:
(a)any abuse by the Licensee, either alone or with other undertakings, of a dominant position within the United Kingdom or a substantial part of it. Such abuse may, in particular, consist in:
(i)directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;
(ii)limiting production, markets or technical development to the prejudice of consumers;
(iii)applying dissimilar conditions to equivalent transactions with other parties, thereby placing them at a competitive disadvantage; or
(iv)making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts; or
(b)the making (including the implementation) of any agreement, the compliance with any decision of any association of undertakings or the carrying on of any concerted practice with any other undertaking which has the object or effect of preventing, restricting or distorting competition within the United Kingdom.
31.2—(a) An act or omission of a kind described in paragraph 31.1 is not prohibited where:
(i)it has or would have no appreciable effect on competition; or
(ii)it has or would have no effect on competition between persons engaged in commercial activities connected with telecommunications and it would have no effect on users of telecommunication services.
(b)An act or omission of a kind described in paragraph 31.1(b) is not prohibited by this Condition if the agreement, decision or concerted practice contributes to improving the provision of any goods or services or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit and does not:
(i)impose on the parties concerned restrictions which are not indispensable to attaining those objectives; and
(ii)afford such parties the possibility of eliminating competition in respect of a substantial part of the goods or services in question.
(c)This Condition shall not apply to any provision of an agreement insofar as it is a provision by virtue of which the Restrictive Trade Practices Act 1976 applies to that agreement.
(d)This Condition shall not apply to a merger situation qualifying for investigation under the Fair Trading Act 1973.
31.3 Whether any act or omission is prohibited by this Condition shall be determined:
(a)with a view to securing that there is no inconsistency with the general principles having application to similar questions of directly applicable competition law, in particular those laid down by the Court of Justice of the European Communities on the scope of the competition rules contained in the EC Treaty and block exemptions adopted by the European Commission under Article 81(3) (ex Article 85(3)); and
(b)having regard to:
(i)any decision taken, or notice issued, by the European Commission in applying the competition rules contained in the EC Treaty and any relevant pronouncement of the Director General of Fair Trading or report of the Competition Commission; and
(ii)any guidelines on the application of this Condition issued from time to time by the Director.
31.4—(a) If it appears to the Director that an act or omission of the Licensee is or was prohibited by this Condition he may make an initial determination to that effect (an “Initial Determination”).
(b)Before making an Initial Determination the Director shall give a notice to the Licensee:
(i)stating that he is investigating a possible contravention of this Condition;
(ii)setting out the reasons why it appears to him that this Condition may be being, or may have been, breached, including any matters of fact or law which he thinks relevant;
(iii)requesting within a reasonable period laid down by the Director such further information as he may require from the Licensee in order to complete his Determination; and
(iv)where appropriate, setting out the steps he believes the Licensee would have to take in order to remedy the alleged breach.
31.5—(a) Within 28 days of the Director:
(i)making an Initial Determination;
(ii)making a provisional order; or
(iii)giving notice of his proposal to make a final order under section 17(1) of the Act,
in respect of the contravention in question, the Licensee may notify the Director that it:
(iv)requires him to make a final determination (a “Final Determination”) of the matter; and
(v)requires that in making the Final Determination he takes into account a report of a body of experts appointed by him to consider the matter (“the Advisory Body”).
(b)Before making a Final Determination the Director shall:
(i)give a notice to the Licensee setting out the matters referred to in paragraph 31.4(b); and
(ii)if the Licensee has given notice under sub-paragraph 31.5(a)(v) above, take into account the report of the Advisory Body on the matter.
(c)The Director shall then determine whether he is satisfied that the act or omission in respect of which the Initial Determination was made is or was prohibited by this Condition.
31.6—(a) Before making his Initial Determination or Final Determination the Director shall give the Licensee, and any other person whom he considers it appropriate to consult, such period within which to make representations (both orally and in writing) in response to the notice as he considers reasonable in all the circumstances.
(b)The Director shall notify the Licensee and any other person whom he considers it appropriate to notify of every Initial Determination and Final Determination made by him and of his reasons for making it; and he shall, if so requested by the Licensee, publish any report of the Advisory Body on the matter, subject to such exclusions as he may consider it appropriate to make of matters of a kind mentioned in section 48(2) of the Act.
31.7 The Director shall publish a description of his office’s procedures for the enforcement of this Condition including the steps taken to ensure that he has access to appropriate independent advice in enforcing this Condition.
31.8 This Condition shall not limit or affect in any way the Licensee’s obligations arising under any other condition of this Licence nor limit the Director’s powers of enforcement under sections 16 to 18 of the Act.
31.9—(a) On the coming into force of any Act or subordinate legislation which:
(i)contains a prohibition enforceable by the Director, or gives to the Director the power to enforce an existing prohibition, of any behaviour prohibited under paragraph 31.1;
(ii)gives to third parties in respect of a breach of that prohibition at least the rights they have under section 18 of the Act in respect of a breach of a provisional or final order; and
(iii)permits the imposition on the Licensee of monetary penalties in respect of the breach of that prohibition,
this Condition shall cease to apply to the behaviour prohibited by or the prohibition enforceable by such Act or subordinate legislation.
(b)If this Condition still has effect on 31 July 2001, it shall cease to have effect after that date.
31.10 The prohibition in paragraph 31.1(b) shall not apply to acts or omissions done prior to the expiry of the three months from the date of this Licence in pursuance of agreements entered into prior to the date of this Licence.