Enterprise and Regulatory Reform Bill

Session 2012 - 13
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Other Bills before Parliament

Enterprise and Regulatory Reform Bill

Enterprise and Regulatory Reform Bill
Schedule 14 — Regulators: use of powers under the 1998 Act
197

      (3)
After subsection (4) insert—
“(4A)
Before making a final order or making or confirming a provisional
order, the Authority shall consider whether it would be more
appropriate to proceed under the Competition Act 1998.
(4B)
The Authority shall not make a final order or make or confirm a
5
provisional order if it considers that it would be more appropriate to
proceed under the Competition Act 1998.”
      (4)
In subsection (5), omit paragraph (c) and the “or” preceding it.
      (5)
In subsection (6)—
(a)
in the words before paragraph (a), after “the Authority” insert
10
“decides that it would be more appropriate to proceed under the
Competition Act 1998 or”, and
(b)
in paragraph (a), after “that it” insert “has so decided or”.
3
In section 30A (penalties), for subsection (2) substitute—
“(2)
Before imposing a penalty on a regulated person under
15
subsection (1), the Authority shall consider whether it would be
more appropriate to proceed under the Competition Act 1998.
(2A)
The Authority shall not impose a penalty on a regulated person
under subsection (1) if it considers that it would be more appropriate
to proceed under the Competition Act 1998.”
20
Electricity Act 1989 (c. 29)
4
The Electricity Act 1989 is amended as follows.
5     (1)
Section 25 (orders for securing compliance) is amended as follows.
      (2)
In subsections (1), (2) and (4), for “(5) and” (in each place where it occurs)
substitute “(4A) to”.
25
      (3)
After subsection (4) insert—
“(4A)
Before making a final order or making or confirming a provisional
order, the Authority shall consider whether it would be more
appropriate to proceed under the Competition Act 1998.
(4B)
The Authority shall not make a final order or make or confirm a
30
provisional order if it considers that it would be more appropriate to
proceed under the Competition Act 1998.”
      (4)
In subsection (5), omit paragraph (d) and the “or” preceding it.
      (5)
In subsection (6)—
(a)
in the words before paragraph (a), after “the Authority” insert
35
“decides that it would be more appropriate to proceed under the
Competition Act 1998 or”, and
(b)
in paragraph (a), after “that it” insert “has so decided or”.
6
In section 27A (penalties), for subsection (2) substitute—
“(2)
Before imposing a penalty on a regulated person under
40
subsection (1), the Authority shall consider whether it would be
more appropriate to proceed under the Competition Act 1998.

Enterprise and Regulatory Reform Bill
Schedule 14 — Regulators: use of powers under the 1998 Act
198

(2A)
The Authority shall not impose a penalty on a regulated person
under subsection (1) if it considers that it would be more appropriate
to proceed under the Competition Act 1998.”
7
In section 43 (functions with respect to competition), in subsection (6), for the
words from the beginning to “(3) above” substitute “If any question arises as
5
to whether subsection (2) or (3) above applies to any particular case”.
Water Industry Act 1991 (c. 56)
8
The Water Industry Act 1991 is amended as follows.
9     (1)
Section 19 (exception to duty to enforce) is amended as follows.
      (2)
For subsection (1A) substitute—
10
“(1A)
Before making an enforcement order or confirming a provisional
enforcement order, the Authority shall consider whether it would be
more appropriate to proceed under the Competition Act 1998.
(1B)
The Authority shall not make an enforcement order or confirm a
provisional enforcement order if it considers that it would be more
15
appropriate to proceed under the Competition Act 1998.”
      (3)
In subsection (3)—
(a)
in the words before paragraph (a), for “is satisfied as mentioned in
subsection (1A) above” substitute “has decided that it would be more
appropriate to proceed under the Competition Act 1998”, and
20
(b)
in paragraph (a), after “satisfied” insert “or has so decided”.
10
In section 22A (penalties), for subsection (13) substitute—
“(13)
Before imposing a penalty under this section, the Authority shall
consider whether it would be more appropriate to proceed under the
Competition Act 1998.
25
(14)
The Authority shall not impose a penalty under this section if it
considers that it would be more appropriate to proceed under the
Competition Act 1998.”
Railways Act 1993 (c. 43)
11
The Railways Act 1993 is amended as follows.
30
12    (1)
Section 55 (orders for securing compliance) is amended as follows.
      (2)
For subsection (5A) substitute—
“(5A)
Before making a final order or making or confirming a provisional
order, the Office of Rail Regulation shall consider whether it would
be more appropriate to proceed under the Competition Act 1998.
35
(5AA)
The Office of Rail Regulation shall not make a final order or make or
confirm a provisional order if it considers that it would be more
appropriate to proceed under the Competition Act 1998.”
      (3)
In subsection (5D)(b), for “(5A)” substitute “(5AA)”.

Enterprise and Regulatory Reform Bill
Schedule 14 — Regulators: use of powers under the 1998 Act
199

13
In section 57A (penalties), for subsection (6) substitute—
“(6)
Before imposing a penalty under this section, the Office of Rail
Regulation must consider whether it would be more appropriate to
proceed under the Competition Act 1998.
(7)
The Office of Rail Regulation must not impose a penalty under this
5
section if it considers that it would be more appropriate to proceed
under the Competition Act 1998.”
14
In section 67 (functions of the Office of Rail Regulation with respect to
competition), in subsection (8), for the words from the beginning to “(3)
above” substitute “If any question arises as to whether subsection (2) or (3)
10
above applies to any particular case”.
Transport Act 2000 (c. 38)
15    (1)
Section 21 of the Transport Act 2000 (exceptions to duties to secure
compliance) is amended as follows.
      (2)
In subsection (1), omit paragraph (b) and the “or” preceding it.
15
      (3)
After subsection (5) insert—
“(6)
Before making a final order or making or confirming a provisional
order, the CAA must consider whether it would be more appropriate
to proceed under the Competition Act 1998.
(7)
The CAA must not make a final order or make or confirm a
20
provisional order to the extent that it considers that it would be more
appropriate to proceed under the Competition Act 1998.”
Communications Act 2003 (c. 21)
16
The Communications Act 2003 is amended as follows.
17
In section 94 (notification of contravention of SMP apparatus conditions), for
25
subsection (10) substitute—
“(10)
Before giving a notification under this section, OFCOM must
consider whether it would be more appropriate to proceed under the
Competition Act 1998.
(10A)
OFCOM must not give a notification under this section if they
30
consider that it would be more appropriate to proceed under the
Competition Act 1998.
(10B)
In a case where OFCOM decide that it would be more appropriate to
proceed under the Competition Act 1998, they must publish a
statement to that effect in such manner as they consider appropriate
35
for bringing their decision to the attention of persons whom they
consider are likely to be affected by it.”
18
In section 96A (notification of contravention of condition other than SMP
apparatus condition), for subsection (5) substitute—
“(5)
Before giving a notification under this section, OFCOM must
40
consider whether it would be more appropriate to proceed under the
Competition Act 1998.

Enterprise and Regulatory Reform Bill
Schedule 14 — Regulators: use of powers under the 1998 Act
200

(6)
OFCOM must not give a notification under this section if they
consider that it would be more appropriate to proceed under the
Competition Act 1998.
(7)
In a case where OFCOM decide that it would be more appropriate to
proceed under the Competition Act 1998, they must publish a
5
statement to that effect in such manner as they consider appropriate
for bringing their decision to the attention of persons whom they
consider are likely to be affected by it.”
Postal Services Act 2011 (c. 5)
19
In Schedule 7 to the Postal Services Act 2011 (enforcement of regulatory
10
requirements) for paragraph 4 substitute—
“4    (1)
Before giving a notification under paragraph 2, OFCOM must
consider whether it would be more appropriate to proceed under
the Competition Act 1998.
      (2)
OFCOM must not give a notification under paragraph 2 if they
15
consider that it would be more appropriate to proceed under the
Competition Act 1998.
      (3)
In a case where OFCOM decide that it would be more appropriate
to proceed under the Competition Act 1998, they must publish a
statement to that effect in such manner as they consider
20
appropriate for bringing their decision to the attention of persons
whom they consider are likely to be affected by it.”
Health and Social Care Act 2012 (c. 7)
20
The Health and Social Care Act 2012 is amended as follows.
21
In section 105 (discretionary requirements), after subsection (3) insert—
25
“(3A)
Before imposing a discretionary requirement on a person mentioned
in subsection (1)(b), Monitor must consider whether it would be
more appropriate to proceed under the Competition Act 1998.
(3B)
Monitor must not impose a discretionary requirement on such a
person if it considers that it would be more appropriate to proceed
30
under the Competition Act 1998.”
22
In section 106 (enforcement undertakings), after subsection (3) insert—
“(3A)
Before accepting an enforcement undertaking from a person
mentioned in subsection (1)(b), Monitor must consider whether it
would be more appropriate to proceed under the Competition Act
35
1998.
(3B)
Monitor must not accept an enforcement undertaking from such a
person if it considers that it would be more appropriate to proceed
under the Competition Act 1998.”
The Electricity (Northern Ireland) Order 1992 (S.I. 1992/231 (N.I. 1))
40
23
In article 46 of the Electricity (Northern Ireland) Order 1992, in paragraph
(6), for the words from the beginning to “(2A) or (3)” substitute “If any

Enterprise and Regulatory Reform Bill
Schedule 14 — Regulators: use of powers under the 1998 Act
201

question arises as to whether paragraph (2A) or (3) applies to any particular
case”.
The Energy (Northern Ireland) Order 2003 (S.I. 2003/419 (N.I. 6))
24
The Energy (Northern Ireland) Order 2003 is amended as follows.
25    (1)
Article 42 (orders for securing compliance) is amended as follows.
5
      (2)
In paragraph (1), for “, (5) and” substitute “and (5) to”.
      (3)
In paragraphs (2) and (4), for “(5) and” substitute “(5) to”.
      (4)
In paragraph (5), omit sub-paragraph (b) and the “or” preceding it.
      (5)
After that paragraph insert—
   “(5A)
Before making a final order or making or confirming a provisional
10
order in relation to a licence holder, the Authority shall consider
whether it would be more appropriate to proceed under the
Competition Act 1998.
     (5B)
The Authority shall not make a final order or make or confirm a
provisional order in relation to a licence holder if it considers that
15
it would be more appropriate to proceed under the Competition
Act 1998.”
      (6)
In paragraph (7)—
(a)
in the words before sub-paragraph (a), after “(6)” insert “or decides
that it would be more appropriate to proceed under the Competition
20
Act 1998”, and
(b)
in sub-paragraph (a), after “satisfied” insert “or has so decided”.
26
In article 45 (financial penalties), for paragraph (3) substitute—
    “(3)
Before imposing a penalty under paragraph (1) or (2) the
Authority shall consider whether it would be more appropriate to
25
proceed under the Competition Act 1998.
     (3A)
The Authority shall not impose a penalty under paragraph (1) or
(2) if it considers that it would be more appropriate to proceed
under the Competition Act 1998.”
The Water and Sewerage Services (Northern Ireland) Order 2006 (S.I. 2006/3336 (N.I. 21))
30
27
The Water and Sewerage Services (Northern Ireland) Order 2006 is amended
as follows.
28    (1)
Article 31 (exceptions to duty to enforce) is amended as follows.
      (2)
In paragraph (1), omit sub-paragraph (d) and the “or” preceding it.
      (3)
After that paragraph insert—
35
   “(1A)
Before making an enforcement order or confirming a provisional
enforcement order under Article 30, the Authority shall consider
whether it would be more appropriate to proceed under the
Competition Act 1998.

Enterprise and Regulatory Reform Bill
Schedule 15 — Minor and consequential amendments: Part 4
202

     (1B)
The Authority shall not make an enforcement order or confirm a
provisional enforcement order under that Article if it considers
that it would be more appropriate to proceed under the
Competition Act 1998.”
      (4)
In paragraph (3)—
5
(a)
in the words before sub-paragraph (a)—
(i)
for “, (c) or (d)” substitute “or (c)”, and
(ii)
after “paragraph (1)” insert “or decides that it would be more
appropriate to proceed under the Competition Act 1998”, and
(b)
in sub-paragraph (a), after “so satisfied” insert “or has so decided”.
10
29
In article 35 (financial penalties), for paragraph (11) substitute—
   “(11)
Before imposing a penalty under this Article the Authority shall
consider whether it would be more appropriate to proceed under
the Competition Act 1998.
     (12)
The Authority shall not impose a penalty under this Article if it
15
considers that it would be more appropriate to proceed under the
Competition Act 1998.”
Schedule 15
Section 47

Minor and consequential amendments: Part 4
20
Civil Aviation Act 1982 (c. 16)
1
In Schedule 1 to the Civil Aviation Act 1982 (constitution etc. of the
Authority), in paragraph 15—
(a)
the existing text becomes sub-paragraph (1), and
(b)
after that sub-paragraph insert—
25
    “(2)
The power in sub-paragraph (1) is subject to provision in
rules made under section 51 of the Competition Act 1998
by virtue of paragraph 1A of Schedule 9 to that Act in
respect of the exercise of a function under Part 1 of that
Act.”
30
Gas Act 1986 (c. 44)
2
In section 36A of the Gas Act 1986 (functions with respect to competition), in
subsections (3), (3A) and (7)(b), after “38(1) to (6)” (in each place where it
occurs) insert “, 40B(1) to (4)”.
Electricity Act 1989 (c. 29)
35
3
In section 43 of the Electricity Act 1989 (functions with respect to
competition), in subsections (3), (3A) and (6)(b), after “38(1) to (6)” (in each
place where it occurs) insert “, 40B(1) to (4)”.

Enterprise and Regulatory Reform Bill
Schedule 15 — Minor and consequential amendments: Part 4
203

Water Industry Act 1991 (c. 56)
4
The Water Industry Act 1991 is amended as follows.
5
In section 31 (functions with respect to competition), in subsections (3), (4A)
and (8)(b), after “38(1) to (6)” (in each place where it occurs) insert “, 40B(1)
to (4)”.
5
6
In Schedule 1A (constitution etc. of the Authority), in paragraph 10, after
sub-paragraph (2) insert—
    “(3)
Sub-paragraph (1) is subject to provision in rules made under
section 51 of the Competition Act 1998 by virtue of paragraph 1A
of Schedule 9 to that Act in respect of the exercise of a function
10
under Part 1 of that Act.”
Railways Act 1993 (c. 43)
7
In section 67 of the Railways Act 1993 (functions with respect to
competition), in subsections (3), (3A) and (8)(b), after “38(1) to (6)” (in each
place where it occurs) insert “, 40B(1) to (4)”.
15
Competition Act 1998 (c. 41)
8
The Competition Act 1998 is amended as follows.
9
In section 26 (powers when conducting investigations), in subsection (3)(b),
for “42 to” substitute “43 and”.
10
In section 38 (guidance on level of penalties), in subsection (9), for “an appeal
20
tribunal” substitute “the Tribunal”.
11
In section 54 (regulators), in subsection (1)—
(a)
omit paragraph (c), and
(b)
for paragraph (f) substitute—
“(f)
the Northern Ireland Authority for Utility
25
Regulation;”.
12    (1)
Schedule 1 (exclusions: mergers and concentrations) is amended as follows.
      (2)
In paragraph 5—
(a)
for “the Competition Commission” (in each place where it occurs)
substitute “the CMA”, and
30
(b)
for “the Commission” (in each place where it occurs) substitute “the
CMA”.
Utilities Act 2000 (c. 27)
13
In Schedule 1 to the Utilities Act 2000 (constitution etc. of the Authority), in
paragraph 9, after sub-paragraph (2) insert—
35
   “(2A)
Sub-paragraph (1) is subject to provision in rules made under
section 51 of the Competition Act 1998 by virtue of paragraph 1A
of Schedule 9 to that Act in respect of the exercise of a function
under Part 1 of that Act.”