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You are here: BAILII >> Databases >> United Kingdom Statutory Instruments >> The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 No. 1261 URL: http://www.bailii.org/uk/legis/num_reg/2004/20041261.html |
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Made | 30th April 2004 | ||
Coming into force | |||
For the purposes of regulation | |||
4 as it gives effect to paragraphs | |||
50(a) and 54(8) of Schedule 1 - | 1st May 2007 | ||
For all other purposes - | 1st May 2004 |
Interpretation
2.
In these Regulations -
Designation of national competition authorities
3.
- (1) Subject to paragraphs (2) and (3) below, the following persons are hereby designated as national competition authorities pursuant to Article 35 of the EC Competition Regulation -
(2) The OFT is designated as a national competition authority for the purposes of exercising all of the powers and functions of a competition authority of a Member State under Chapters I, II, IV, V, VIII and IX of the EC Competition Regulation.
(3) Any person mentioned in paragraph (1)(b) above is designated as a national competition authority for the purposes of exercising all of the powers and functions of a competition authority of a Member State under Chapters I, II, IV, VIII and IX of the EC Competition Regulation.
Amendments to the Competition Act 1998
4.
The amendments to the 1998 Act specified in Schedule 1 to these Regulations shall have effect.
Amendments to other enactments
5.
The amendments to other enactments specified in Schedule 2 to these Regulations shall have effect.
Savings and consequential provision
6.
- (1) Paragraph (2) applies if an individual exemption from the prohibition imposed by section 2(1) of the 1998 Act has been granted before the appointed day and has not expired or been cancelled before that day.
(2) The repeals made by these Regulations do not affect that exemption (or a condition or an obligation relating to it); but this does not allow the OFT, on or after the appointed day, to extend that exemption under section 4(6) of the 1998 Act.
(3) Section 5 of the 1998 Act, despite its repeal by these Regulations, shall continue in effect while any individual exemption has effect.
(4) In this regulation "individual exemption" means an exemption granted under section 4 of the 1998 Act (including one granted by virtue of paragraph 3(2)(c) of Schedule 8 to that Act).
7.
- (1) Paragraph (2) applies if, before the appointed day, the European Commission adopted a decision pursuant to Article 81(3) of the Treaty in relation to an agreement and that decision has not expired or been revoked.
(2) Section 10 of the 1998 Act has effect in relation to the agreement without the amendment made by paragraph 7(2) of Schedule 1.
(3) Section 2(5) of the 1998 Act applies to this regulation as it applies to Part 1 of that Act.
8.
- (1) This regulation applies where, before the appointed day, the OFT has made a decision falling within paragraph (c), (d) or (e) of section 46(3), or has made a decision falling within paragraph (f) of section 46(3) in relation to an individual exemption.
(2) This regulation also applies where, on or after the appointed day, the OFT (by virtue of regulation 6) makes under section 5 of the 1998 Act a decision falling within paragraph (d)(i) or (ii) or (f) of section 46(3).
(3) Where this regulation applies -
9.
- (1) Paragraph (2) applies if -
(2) No penalty may be imposed under Part 1 of the 1998 Act in respect of any infringement of the Chapter I prohibition by the agreement which occurred during the period beginning with the date on which notification was given and ending with the appointed day.
10.
Where section 5 of the 1998 Act continues to have effect by virtue of regulation 6, paragraph 6 of Schedule 9 to that Act shall continue to have effect despite its repeal by these Regulations.
Gerry Sutcliffe
Parliamentary Under Secretary of State for Employment Relations, Competition and Consumers, Department of Trade and Industry
30th April 2004
5.
Section 7 (block exemptions: opposition) shall cease to have effect.
6.
- (1) Section 9 (the criteria for individual and block exemptions) is renumbered as subsection (1) of that section.
(2) In that provision, for the words "This section applies to any agreement which" there is substituted "An agreement is exempt from the Chapter I prohibition if it".
(3) In paragraph (a) of that provision, for the word "but" there is substituted "and".
(4) After that provision there is inserted -
(5) In the sidenote to section 9, for the words "The criteria for individual and block exemptions" there is substituted "Exempt agreements".
7.
- (1) Section 10 (parallel exemptions) is amended as follows.
(2) In subsection (1), for paragraphs (b) and (c) there is substituted -
(3) In subsection (9), after the word "Regulation" there is inserted "other than the EC Competition Regulation".
(4) In subsection (10), in the definition of "the Community prohibition" for paragraph (a) there is substituted "(a) Article 81(1);".
8.
- (1) Section 11 (exemption for certain other agreements) is amended as follows.
(2) In subsection (1) -
9.
Sections 12 to 16 and 20 to 24 (which concern notifications) shall cease to have effect.
10.
For Section 25 (OFT's power to investigate) there is substituted -
(3) The second case is where there are reasonable grounds for suspecting that there is an agreement which -
(4) The third case is where there are reasonable grounds for suspecting that the Chapter II prohibition has been infringed.
(5) The fourth case is where there are reasonable grounds for suspecting that the prohibition in Article 82 has been infringed.
(6) The fifth case is where there are reasonable grounds for suspecting that, at some time in the past, there was an agreement which at that time -
(7) The sixth case is where there are reasonable grounds for suspecting that, at some time in the past, there was an agreement which at that time -
(8) Subsection (2) does not permit an investigation to be conducted in relation to an agreement if the OFT -
(9) Subsection (3) does not permit an investigation to be conducted if the OFT -
(10) Subsection (6) does not permit an investigation to be conducted in relation to any agreement if the OFT considers that, at the time in question, the agreement was exempt from the Chapter I prohibition as a result of a block exemption or a parallel exemption.
(11) Subsection (7) does not permit an investigation to be conducted in relation to any agreement if the OFT considers that, at the time in question, the agreement was an agreement to which the prohibition in Article 81(1) was inapplicable by virtue of a regulation of the Commission.
(12) It is immaterial for the purposes of subsection (6) or (7) whether the agreement in question remains in existence.".
11.
In section 26(1) (powers when conducting investigations), the words "under section 25" shall cease to have effect.
12.
- (1) Section 27 (power to enter premises without a warrant) is amended as follows.
(2) In subsection (1) -
(3) In subsection (3) -
(4) In subsection (5), after paragraph (e) there is inserted -
(5) After subsection (5) there is inserted -
(6) In the sidenote, for the words "Power to enter premises without a warrant" there is substituted "Power to enter business premises without a warrant".
13.
- (1) Section 28 (power to enter premises under a warrant) is amended as follows.
(2) In subsection (1) -
(3) After subsection (7), there is inserted -
(4) In the sidenote, for the words "Power to enter premises under a warrant" there is substituted "Power to enter business premises under a warrant".
14.
After section 28 there is inserted -
(b) there are reasonable grounds for suspecting that -
(2) A warrant under this section shall authorise a named officer of the OFT, and any other of its officers whom the OFT has authorised in writing to accompany the named officer -
(d) to take any other steps which appear to be necessary for the purpose mentioned in paragraph (c)(i);
(e) to require any person to provide an explanation of any document appearing to be of the relevant kind or to state, to the best of his knowledge and belief, where it may be found;
(f) to require any information which is stored in any electronic form and is accessible from the premises and which the named officer considers relates to any matter relevant to the investigation, to be produced in a form -
(3) If, in the case of a warrant under subsection (1)(b), the judge is satisfied that it is reasonable to suspect that there are also on the premises other documents relating to the investigation concerned, the warrant shall also authorise action mentioned in subsection (2) to be taken in relation to any such document.
(4) A warrant under this section may authorise persons specified in the warrant to accompany the named officer who is executing it.
(5) Any person entering premises by virtue of a warrant under this section may take with him such equipment as appears to him to be necessary.
(6) On leaving any premises which he has entered by virtue of a warrant under this section, the named officer must, if the premises are unoccupied or the occupier is temporarily absent, leave them as effectively secured as he found them.
(7) A warrant under this section continues in force until the end of the period of one month beginning with the day on which it is issued.
(8) Any document of which possession is taken under subsection (2)(c) may be retained for a period of three months.
(9) In this section, "domestic premises" means premises (or any part of premises) that are used as a dwelling and are -
15.
- (1) Section 29 (entry of premises under a warrant: supplementary) is amended as follows.
(2) In subsection (1), after the words "section 28" there is inserted "or 28A".
(3) In subsection (2), after the words "section 28" there is inserted "or 28A".
16.
In section 30A (use of statements in prosecution), for the words "to 28" there is substituted "to 28A".
17.
For section 31 (decisions following an investigation) there is substituted -
(2) For the purposes of this section and sections 31A and 31B "decision" means a decision of the OFT -
18.
After section 31 there is inserted -
(4) Commitments under this section -
(5) The provisions of Schedule 6A to this Act shall have effect with respect to procedural requirements for the acceptance, variation and release of commitments under this section.
31B Effect of commitments under section 31A
(1) Subsection (2) applies if the OFT has accepted commitments under section 31A (and has not released them).
(2) In such a case, the OFT shall not -
in relation to the agreement or conduct which was the subject of the investigation (but this subsection is subject to subsections (3) and (4)).
(3) Nothing in subsection (2) prevents the OFT from taking any action in relation to competition concerns which are not addressed by commitments accepted by it.
(4) Subsection (2) also does not prevent the OFT from continuing the investigation, making a decision, or giving a direction where -
(5) If, pursuant to subsection (4), the OFT makes a decision or gives a direction the commitments are to be treated as released from the date of that decision or direction.
31C Review of commitments
(1) Where the OFT is reviewing or has reviewed the effectiveness of commitments accepted under section 31A it must, if requested to do so by the Secretary of State, prepare a report of its findings.
(2) The OFT must -
31D Guidance
(1) The OFT must prepare and publish guidance as to the circumstances in which it may be appropriate to accept commitments under section 31A.
(2) The OFT may at any time alter the guidance.
(3) If the guidance is altered, the OFT must publish it as altered.
(4) No guidance is to be published under this section without the approval of the Secretary of State.
(5) The OFT may, after consulting the Secretary of State, choose how it publishes its guidance.
(6) If the OFT is preparing or altering guidance under this section it must consult such persons as it considers appropriate.
(7) If the proposed guidance or alteration relates to a matter in respect of which a regulator exercises concurrent jurisdiction, those consulted must include that regulator.
(8) When exercising its discretion to accept commitments under section 31A, the OFT must have regard to the guidance for the time being in force under this section.
31E Enforcement of commitments
(1) If a person from whom the OFT has accepted commitments fails without reasonable excuse to adhere to the commitments (and has not been released from them), the OFT may apply to the court for an order -
(2) An order of the court under subsection (1) may provide for all the costs of, or incidental to, the application for the order to be borne by -
(3) In the application of subsection (2) to Scotland, the reference to "costs" is to be read as a reference to "expenses".".
19.
- (1) Section 32 (directions in relation to agreements) is amended as follows.
(2) In subsection (1), after the words "the Chapter I prohibition" there is inserted "or that it infringes the prohibition in Article 81(1)".
(3) Subsection (2) shall cease to have effect.
20.
- (1) Section 33 (directions in relation to conduct) is amended as follows.
(2) In subsection (1), after the words "the Chapter II prohibition" there is inserted "or that it infringes the prohibition in Article 82".
(3) Subsection (2) shall cease to have effect.
21.
- (1) Section 35 (interim measures) is amended as follows.
(2) For subsection (1) there is substituted -
(3) For subsection (5) there is substituted -
but, subject to that, has effect while this section applies.".
(4) In subsection (6), for "case of a suspected infringement of the Chapter I prohibition" there is substituted "cases mentioned in section 25(2), (3), (6) and (7)".
(5) In subsection (7), for "case of a suspected infringement of the Chapter II prohibition" there is substituted "cases mentioned in section 25(4) and (5)".
(6) After subsection (7) there is inserted -
(9) In the case of an investigation conducted by virtue of section 25(3) or (7), this section does not apply if a person has produced evidence to the OFT in connection with the investigation that satisfies it on the balance of probabilities that, in the event of it reaching the basic infringement conclusion, it would also reach the conclusion that the suspected agreement is an agreement to which the prohibition in Article 81(1) is inapplicable because the agreement satisfies the conditions in Article 81(3); and in this subsection "the basic infringement conclusion" is the conclusion that there is an agreement which -
22.
- (1) Section 36 (penalty for infringing Chapter I or Chapter II prohibition) is amended as follows.
(2) In subsection (1), after the words "the Chapter I prohibition" there is inserted "or that it has infringed the prohibition in Article 81(1)".
(3) In subsection (2), after the words "the Chapter II prohibition" there is inserted "or that it has infringed the prohibition in Article 82".
(4) In subsection (4), after the words "Subsection (1) is subject to section 39 and does not apply" there is inserted "in relation to a decision that an agreement has infringed the Chapter I prohibition".
(5) In subsection (5), after the words "Subsection (2) is subject to section 40 and does not apply" there is inserted "in relation to a decision that conduct has infringed the Chapter II prohibition".
(6) In the sidenote, for the words "Penalty for infringing the Chapter I or Chapter II prohibition" there is substituted "Penalties".
23.
- (1) Section 38 (the appropriate level of penalty) is amended as follows.
(2) After subsection (1) there is inserted -
24.
- (1) Section 39 (limited immunity for small agreements) is amended as follows.
(2) In subsection (3), after the words "A party to a small agreement is immune from the effect of section 36(1)" there is inserted "so far as that provision relates to decisions about infringement of the Chapter I prohibition".
(3) In the side note, for the words "Limited immunity for small agreements" there is substituted "Limited immunity in relation to the Chapter I prohibition".
25.
- (1) Section 40 (limited immunity in relation to the Chapter II prohibition) is amended as follows.
(2) In subsection (3), after the words "A person is immune from the effect of section 36(2)" there is inserted ", so far as that provision relates to decisions about infringement of the Chapter II prohibition,".
26.
Section 41 (agreements notified to the Commission) shall cease to have effect.
27.
- (1) Section 42 (offences) is amended as follows.
(2) In subsection (1), for the words "or 28" there is substituted ", 28 or 28A".
(3) In subsection (7), for the words "section 28" there is substituted "section 28 or 28A".
28.
- (1) Section 43 (destroying or falsifying documents) is amended as follows.
(2) In subsection (1), for the words "or 28" there is substituted ", 28 or 28A".
29.
- (1) Section 46 (appealable decisions) is amended as follows.
(2) For subsection (3) there is substituted -
and includes a direction under section 32, 33 or 35 and such other decisions under this Part as may be prescribed.".
30.
- (1) Section 47 (third party appeals) is amended as follows.
(2) For subsection (1) there is substituted -
31.
- (1) Section 52 (advice and information) is amended as follows.
(2) After subsection (1) there is inserted -
32.
Section 53 (fees) shall cease to have effect.
33.
- (1) Section 54 (regulators) is amended as follows.
(2) In subsection (4), for the words following "as a result of" there is substituted "any enactment (including any subordinate legislation) whenever passed or made".
(3) After subsection (7) there is inserted -
34.
- (1) Section 58 (findings of fact by OFT) is amended as follows.
(2) In subsection (1), the words "or the OFT has decided to take further action in accordance with section 16(2) or 24(2)" shall cease to have effect.
(3) In subsection (2) -
(c) in the definition of "relevant party" -
35.
- (1) Section 59 (interpretation of Part 1) is amended as follows.
(2) In subsection (1) -
(3) In the sidenote, for the word "Interpretation" there is substituted "Interpretation of Part 1".
36.
For section 61 (introduction), and the Part heading immediately preceding that section, there is substituted -
37.
- (1) Section 62 (power to enter premises: Commission investigations) is amended as follows.
(2) In subsection (1) -
(3) In subsection (2) -
(c) in paragraph (b) -
(4) In subsection (3) -
(5) In subsection (4) -
(6) For subsection (5) there is substituted -
(7) After subsection (9) there is inserted -
(11) In subsection (10), the reference in the definition of "business premises" to Article 20 of the EC Competition Regulation does not include a reference to that Article as applied by Article 21 of that Regulation.".
(8) In the sidenote, for the words "Power to enter Premises: Commission investigations" there is substituted "Power to enter business premises under a warrant: Article 20 inspections".
38.
After section 62 there is inserted -
(2) Those matters are -
(3) A warrant under this section shall authorise a named officer of the OFT and any other OFT officer, or Commission official, accompanying the named officer to enter any non-business premises specified in the warrant.
(4) A warrant under this section may authorise a named officer of the OFT and any other OFT officer, or Commission official, accompanying the named officer to search for books or records which a Commission official has power to examine.
(5) A warrant under this section may authorise a named officer of the OFT and any other OFT officer, or Commission official, accompanying the named officer to take or obtain copies of books or records of which a Commission official has power to take or obtain copies.
(6) A warrant granted under this section may authorise the use, for either or both of the purposes mentioned in subsections (3) and (4), of such force as is reasonably necessary.
(7) A warrant under this section may authorise persons specified in the warrant to accompany the named officer who is executing it.
(8) Any person entering any premises by virtue of a warrant under this section may take with him such equipment as appears to him to be necessary.
(9) On leaving any premises entered by virtue of a warrant the named officer must, if the premises are unoccupied or the occupier is temporarily absent, leave them as effectively secured as he found them.
(10) A warrant under this section continues in force until the end of the period of one month beginning with the day on which it is issued.
(11) In the application of this section to Scotland, references to the High Court are to be read as references to the Court of Session.
(12) In this section -
39.
After section 62A, there is inserted -
40.
- (1) Section 63 (power to enter premises: OFT's special investigations) is amended as follows.
(2) In subsection (1) -
(3) In subsection (2) -
(4) In subsection (3) -
(5) In subsection (4) -
(6) For subsection (5) there is substituted -
(7) In subsection (7), for the words "named officer" there is substituted "named authorised officer".
(8) After subsection (9) there is inserted -
(9) In the sidenote, for the words "Power to enter premises: OFT's special investigations" there is substituted "Power to enter business premises under a warrant: Article 22(2) inspections".
41.
- (1) Section 64 (entry of premises under sections 62 and 63: supplementary) is amended as follows.
(2) In subsection (1), for the word "investigation" there is substituted "inspection".
(3) In subsection (5), for the definition of "named officer" there is substituted -
(4) In the sidenote, and in each of subsections (1) and (2), after "62" there is inserted ", 62A".
42.
- (1) Section 65 (offences) is amended as follows.
(2) In subsection (1), after "62" there is inserted ", 62A".
43.
After section 65, there is inserted -
which in proceedings in the High Court would be protected from disclosure on grounds of legal professional privilege.
(3) In the application of this section to Scotland -
65B Use of statements in prosecution: Article 22(2) inspections
A statement made by a person in response to a requirement imposed by virtue of section 62B or 63 may not be used in evidence against him on a prosecution for an offence under section 188 of the Enterprise Act 2002 unless, in the proceedings -
44.
After Part 2, there is inserted -
(2) In this Part, the following expressions have the same meanings as in Part 1 -
(3) For the purposes of this Part, the power to require information, in relation to information recorded otherwise than in a legible form, includes power to require a copy of it in a legible form.
(4) Any power conferred on the OFT by this Part to require information includes power to require any document which it believes may contain that information.
65D Power to conduct an Article 22(1) investigation
(1) In any of the following cases, the OFT may conduct an Article 22(1) investigation.
(2) The first case is where there are reasonable grounds for suspecting that there is an agreement which -
(3) The second case is where there are reasonable grounds for suspecting that the prohibition in Article 82 has been infringed.
(4) The third case is where there are reasonable grounds for suspecting that, at some time in the past, there was an agreement which at that time -
(5) It is immaterial for the purposes of subsection (4) whether the agreement in question remains in existence.
(6) A provision of this Part which is expressed to apply to, or in relation to, an agreement is to be read as applying equally to, or in relation to, a decision by an association of undertakings or a concerted practice.
65E Powers when conducting Article 22(1) investigations
(1) For the purposes of an Article 22(1) investigation, the OFT may require any person to produce to it a specified document, or to provide it with specified information, which it considers relates to any matter relevant to the investigation.
(2) The power conferred by subsection (1) is to be exercised by a notice in writing.
(3) A notice under subsection (2) must indicate -
(4) In subsection (1) "specified" means -
(5) The OFT may also specify in the notice -
(6) The power under this section to require a person to produce a document includes power -
(b) if the document is not produced, to require him to state, to the best of his knowledge and belief, where it is.
65F Power to enter business premises without a warrant
(1) Any officer of the OFT who is authorised in writing by the OFT to do so ("an investigating officer") may enter any business premises in connection with an Article 22(1) investigation.
(2) No investigating officer is to enter any premises in the exercise of his powers under this section unless he has given to the occupier of the premises a written notice which -
(3) Subsection (2) does not apply -
(b) if the investigating officer has taken all such steps as are reasonably practicable to give notice but has not been able to do so.
(4) In a case falling within subsection (3), the power of entry conferred by subsection (1) is to be exercised by the investigating officer on production of -
(5) An investigating officer entering any premises under this section may -
(c) require any person to state, to the best of his knowledge and belief, where any such document is to be found;
(d) take copies of, or extracts from, any document which is produced;
(e) require any information which is stored in any electronic form and is accessible from the premises and which the investigating officer considers relates to any matter relevant to the investigation, to be produced in a form -
(f) take any steps which appear to be necessary for the purpose of preserving or preventing interference with any document which he consider relates to any matter relevant to the investigation.
(6) In this section "business premises" means premises (or any part of premises) not used as a dwelling.
65G Power to enter business premises under a warrant
(1) On an application made by the OFT to the court in accordance with rules of court, a judge may issue a warrant if he is satisfied that -
(b) there are reasonable grounds for suspecting that -
(c) an investigating officer has attempted to enter premises in the exercise of his powers under section 65F but has been unable to do so and that there are reasonable grounds for suspecting that there are on the premises documents the production of which could have been required under that section.
(2) A warrant under this section shall authorise a named officer of the OFT and any other of its officers whom the OFT has authorised in writing to accompany the named officer -
(d) to take any other steps which appear to be necessary for the purpose mentioned in paragraph (c)(i);
(e) to require any person to provide an explanation of any document appearing to be of the relevant kind or to state, to the best of his knowledge and belief, where it may be found;
(f) to require any information which is stored in any electronic form and is accessible from the premises and which the named officer considers relates to any matter relevant to the Article 22(1) investigation, to be produced in a form -
(3) If, in the case of a warrant under subsection (1)(b), the judge is satisfied that it is reasonable to suspect that there are also on the premises other documents relating to the Article 22(1) investigation concerned, the warrant shall also authorise action mentioned in subsection (2) to be taken in relation to any such document.
(4) A warrant under this section may authorise persons specified in the warrant to accompany the named officer who is executing it.
(5) Any person entering premises by virtue of a warrant under this section may take with him such equipment as appears to him to be necessary.
(6) On leaving any premises which he has entered by virtue of a warrant under this section, the named officer must, if the premises are unoccupied or the occupier is temporarily absent, leave them as effectively secured as he found them.
(7) A warrant under this section continues in force until the end of the period of one month beginning with the day on which it is issued.
(8) Any document of which possession is taken under subsection (2)(c) may be retained for a period of three months.
(9) In this section "business premises" has the same meaning as in section 65F.
65H Power to enter domestic premises under a warrant
(1) On an application made by the OFT to the court in accordance with rules of court, a judge may issue a warrant if he is satisfied that -
(b) there are reasonable grounds for suspecting that -
(2) A warrant under this section shall authorise a named officer of the OFT, and any other of its officers whom the OFT has authorised in writing to accompany the named officer -
(d) to take any other steps which appear to be necessary for the purpose mentioned in paragraph (c)(i);
(e) to require any person to provide an explanation of any document appearing to be of the relevant kind or to state, to the best of his knowledge or belief, where it may be found;
(f) to require any information which is stored in any electronic form and is accessible from the premises and which the named officer considers relates to any matter relevant to the investigation, to be produced in a form -
(3) If, in the case of a warrant under subsection (1)(b), the judge is satisfied that it is reasonable to suspect that there are also on the premises other documents relating to the investigation concerned, the warrant shall also authorise action mentioned in subsection (2) to be taken in relation to any such document.
(4) A warrant under this section may authorise persons specified in the warrant to accompany the named officer who is executing it.
(5) Any person entering premises by virtue of a warrant under this section may take with him such equipment as appears to him to be necessary.
(6) On leaving any premises which he has entered by virtue of a warrant under this section, the named officer must, if the premises are unoccupied or the occupier is temporarily absent, leave them as effectively secured as he found them.
(7) A warrant under this section continues in force until the end of the period of one month beginning with the day on which it is issued.
(8) Any document of which possession is taken under subsection (2)(c) may be retained for a period of three months.
(9) In this section, "domestic premises" means premises (or any part of premises) that are used as a dwelling and are -
65I Entry of premises under a warrant: supplementary
(1) A warrant issued under section 65G or 65H must indicate -
(2) The powers conferred by section 65G or 65H are to be exercised on production of a warrant issued under that section.
(3) If there is no one at the premises when the named officer proposes to execute such a warrant he must, before executing it -
(4) If the named officer is unable to inform the occupier of the intended entry he must, when executing the warrant, leave a copy of it in a prominent place on the premises.
(5) In this section -
65J Privileged communications
(1) A person shall not be required, under any provision of this Part, to produce or disclose a privileged communication.
(2) "Privileged communication" means a communication -
which in proceedings in the High Court would be protected from disclosure on grounds of legal professional privilege.
(3) In the application of this section to Scotland -
65K Use of statements in prosecution
A statement made by a person in response to a requirement imposed by virtue of any of sections 65E to 65H may not be used in evidence against him on a prosecution for an offence under section 188 of the Enterprise Act 2002 unless, in the proceedings -
65L Offences
(1) A person is guilty of an offence if he fails to comply with a requirement imposed on him under section 65E, 65F, 65G or 65H.
(2) If a person is charged with an offence under subsection (1) in respect of a requirement to produce a document, it is a defence for him to prove -
(3) If a person is charged with an offence under subsection (1) in respect of a requirement -
it is a defence for him to prove that he had a reasonable excuse for failing to comply with the requirement.
(4) Failure to comply with a requirement imposed under section 65E or 65F is not an offence if the person imposing the requirement has failed to act in accordance with that section.
(5) A person is guilty of an offence if he intentionally obstructs an officer acting in the exercise of his powers under section 65F.
(6) A person guilty of an offence under subsection (1) or (5) is liable -
(7) A person who intentionally obstructs an officer in the exercise of his powers under a warrant issued under section 65G or 65H is guilty of an offence and liable -
65M Destroying or falsifying documents
(1) A person is guilty of an offence if, having been required to produce a document under section 65E, 65F, 65G or 65H -
(2) A person guilty of an offence under subsection (1) is liable -
65N False or misleading information
(1) If information is provided by a person to the OFT in connection with any function of the OFT under this Part, that person is guilty of an offence if -
(2) A person who -
knowing that the information is to be used for the purpose of providing information to the OFT in connection with any of its functions under this Part, is guilty of an offence.
(3) A person guilty of an offence under this section is liable -
45.
In section 72(1) (offences by bodies corporate etc), for the words "55(8) or (65)" there is substituted "65 or 65L to 65N".
46.
- (1) Section 73 (crown application) is amended as follows.
(2) For subsection (4) there is substituted -
(3) In subsection (6) -
(4) After subsection (6) there is inserted -
(5) Subsection (7) shall cease to have effect.
(6) In subsection (8) -
47.
After section 75 there is inserted -
(5) If the Secretary of State proposes to approve a rule subject to modifications he must inform the OFT of the proposed modifications and take into account any comments made by the OFT.
(6) Subsections (3) to (5) apply also to any alteration of the rules made by the OFT.
(7) The Secretary of State may, after consulting the OFT, by order vary or revoke any rules made under this section.
(8) If the Secretary of State considers that rules should be made under this section with respect to a particular matter he may direct the OFT to exercise its powers under this section and make rules about that matter.".
48.
- (1) Schedule 1 (exclusions: mergers and concentrations) is amended as follows.
(2) In paragraph 4 -
(b) sub-paragraph (6) shall cease to have effect.
49.
- (1) Schedule 2 (exclusions: other competition scrutiny) is amended as follows.
(2) Part 2 (companies) shall cease to have effect.
(3) Part 4 (environmental protection) shall cease to have effect.
50.
In Schedule 3 (general exclusions) -
51.
Schedule 5 (notification under Chapter I: procedure) and Schedule 6 (notification under Chapter II: procedure) shall cease to have effect.
52.
Before Schedule 7 there is inserted -
2.
- (1) Before accepting the commitments or variation, the OFT must -
(2) A notice under this paragraph must state -
(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 OFT must not accept the commitments or variation of which notice has been given under paragraph 2(1) with modifications unless it -
(2) A notice under this paragraph must state -
(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 OFT decides -
the OFT must give notice that it has so decided.
5.
The requirements of paragraph 3 shall not apply if the OFT -
6.
The requirements of paragraph 3 shall not apply if the OFT -
7.
As soon as practicable after accepting commitments or a variation under section 31A the OFT must publish the commitments or the variation in such manner as the OFT considers appropriate.
8.
A notice under paragraph 2 or 3 shall be given by -
(2) A notice under this paragraph must state -
(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 OFT decides not to proceed with the release, it must -
13.
As soon as practicable after releasing the commitments, the OFT must -
14.
A notice under paragraph 11 or 12 shall be given by -
(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 -
(5) For sub-paragraph (2) of paragraph 5 there is substituted -
(6) Paragraphs 6 and 7 shall cease to have effect.
(7) For paragraph 8 there is substituted -
which relate to the carrying on of activities to which this subsection applies.";
2.
- (1) The Companies Act 1989[7] is amended as follows.
(2) Subsection (2)(a) of section 46 (delegation of functions of Secretary of State), section 47 (restrictive practices) and Schedule 14 (supervisory and qualifying bodies: restrictive practices) shall cease to have effect.
(3) In section 54 (index of defined expressions) the entry in the Table relating to "Director (in Schedule 14)" shall cease to have effect.
3.
- (1) The Electricity Act 1989[8] is amended as follows.
(2) In section 43 (functions with respect to competition) -
which relate to commercial activities connected with the generation, transmission or supply of electricity.";
4.
- (1) The Water Industry Act 1991[9] is amended as follows.
(2) In section 31 (functions of the Director with respect to competition) -
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.";
5.
- (1) The Electricity (Northern Ireland) Order 1992[10] is amended as follows.
(2) In Article 46 (functions with respect to competition) -
which relate to commercial activities connected with the generation, transmission or supply of electricity.";
6.
- (1) The Railways Act 1993[11] is amended as follows.
(2) In section 67 (respective functions of the Regulator and OFT, and functions of the Monopolies Commission) -
which relate to the supply of services relating to railways.";
7.
- (1) The Environment Act 1995[12] is amended as follows.
(2) In section 94 (producer responsibility: supplementary provisions) -
(3) Section 94A (producer responsibility: competition matters) shall cease to have effect.
8.
- (1) The Channel Tunnel Rail Link Act 1996[13] is amended as follows.
(2) In section 22 (restriction of functions in relation to competition etc), for subsection (3) there is substituted -
entered into, taken by or engaged in by a rail link undertaker in connection with the supply of railway services, so far as relating to the rail link.".
9.
- (1) The Gas (Northern Ireland) Order 1996[14] is amended as follows.
(2) In Article 23 (functions with respect to competition) -
connected with the conveyance, storage or supply of gas.";
10.
- (1) The Transport Act 2000[15] is amended as follows.
(2) In section 86 (functions exercisable by the CAA and OFT) -
which relate to the supply of air traffic services.";
11.
- (1) The Communications Act 2003[16] is amended as follows.
(2) In section 371 (OFCOM's functions under the Competition Act 1998) -
which relate to activities connected with communications matters.";
[5] OJ L 001, 04.1.03, p.1-25.back
[10] S.I. 1992/231 (N.I.1).back
[14] S.I. 1996/275 (N.I.2).back
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