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Enterprise and Regulatory Reform BillPage 190

(a) a person has failed (whether with or without reasonable
excuse) to comply with any requirement of a notice under
section 174 which was given in relation to the reference; and

(b) the failure is preventing the CMA from properly discharging
5its duty under section 138(2).

(4) An extension under subsection (2) or (3) comes into force when
published under section 172.

(5) An extension under subsection (3) continues in force until—

(a) the person concerned provides the information or documents
10to the satisfaction of the CMA or (as the case may be) appears
as a witness in accordance with the requirements of the CMA;
or

(b) the CMA publishes its decision to cancel the extension.

138B Section 138A: supplementary

(1) 15A period extended under section 138A(2) may also be extended
under section 138A(3), and a period extended under section 138A(3)
may also be extended under section 138A(2).

(2) No more than one extension is possible under section 138A(2).

(3) Where a period is extended or further extended under section
20138A(2) or (3), the period as extended or (as the case may be) further
extended shall, subject to subsections (4) and (5), be calculated by
taking the period being extended and adding to it the period of the
extension (whether or not those periods overlap in time).

(4) Subsection (5) applies where—

(a) 25the period within which the CMA shall discharge its duty
under section 138(2) is further extended;

(b) the further extension and at least one previous extension is
made under section 138A(3); and

(c) the same days or fractions of days are included in or comprise
30the further extension and are included in or comprise at least
one such previous extension.

(5) In calculating the period of the further extension, any days or
fractions of days of the kind mentioned in subsection (4)(c) shall be
disregarded.

(6) 35The Secretary of State may by order amend section 138A so as to alter
one or more of the following periods—

(a) the period of 6 months mentioned in subsection (1) or any
period for the time being there mentioned in substitution for
that period;

(b) 40the period of 4 months mentioned in subsection (2) or any
period for the time being there mentioned in substitution for
that period.

(7) But no alteration shall be made by virtue of subsection (6) which
results in—

(a) 45the period for the time being mentioned in section 138A(1)
exceeding 6 months; or

Enterprise and Regulatory Reform BillPage 191

(b) the period for the time being mentioned in section 138A(2)
exceeding 4 months.

(8) Before making an order under subsection (6) the Secretary of State
shall consult the CMA and such other persons as the Secretary of
5State considers appropriate.

Time-limits: public interest intervention cases

6 (1) Section 144 of the 2002 Act (time-limits for investigations and reports in
public interest intervention cases) is amended as follows.

(2) In subsection (1), for “two years” substitute “18 months”.

(3) 10After subsection (1A) (inserted by Schedule 10) insert—

(1B) The CMA may extend, by no more than 6 months, the period within
which its report under section 142 is to be prepared and action is to
be taken in relation to it under section 143(1) or (3) or (as the case may
be 143A(2) or (3) if it considers that there are special reasons for
15doing so.

(1C) An extension under subsection (1B) shall come into force when
published under section 172.

(1D) No more than one extension is possible under subsection (1B).

(4) In subsection (2)—

(a) 20after “amend” insert

(a),

(b) for “two years” substitute “18 months”, and

(c) at the end insert ;

(b) subsection (1B) so as to alter the period of 6 months
25mentioned in that subsection or any period for the
time being mentioned in that subsection in
substitution for that period.

(5) In subsection (3)—

(a) after “results in” insert

(a), 30

(b) for “two years” substitute “18 months”, and

(c) at the end insert “;or

(b) the period for the time being mentioned in subsection
(1B) exceeding 6 months.

35Time-limits: consequential and other minor amendments

7 Part 4 of the 2002 Act (market investigations) is amended as follows.

8 In the heading of that Part, at the beginning insert “Market studies and”.

9 In the heading of Chapter 1, at the beginning insert “Market studies and”.

10 (1) Section 132 (ministerial power to make references) is amended as follows.

(2) 40In subsection (1)—

Enterprise and Regulatory Reform BillPage 192

(a) after “services” insert

(a), and

(b) at the end insert ; and

(b) in a case in which the CMA has published a market
5study notice under section 130A, the period
permitted by section 131B for the preparation and
publication by the CMA of the market study report
has expired.

(3) In subsection (2)(b), for “to make such a reference” substitute “to publish a
10market study notice in relation to the matter concerned”.

11 In section 135 (variation of references), omit subsection (4).

12 In section 156 (effect of undertakings under section 154), after subsection (2)
insert—

(3) The expiry of the period mentioned in section 131B(4) does not
15prevent the making of a market investigation reference if—

(a) the CMA considers that any undertaking concerned has been
breached and has given notice of that fact to the person
responsible for giving the undertaking; or

(b) the person responsible for giving any undertaking concerned
20supplied, in connection with the matter, information to the
OFT which was false or misleading in a material respect.

13 In section 169 (certain duties of relevant authorities to consult: Part 4), in
subsection (6), in the definition of “relevant decision”—

(a) in paragraph (a), for sub-paragraph (i) substitute—

(i) 25to make a reference under section 131 in a case
where the CMA has not published a market
study notice under section 130A in relation to
the matter concerned;

(ia) as to whether to accept undertakings under
30section 154 instead of making any reference
under section 131; or, and

(b) in paragraph (b)(i), omit “as to whether”.

14 (1) Section 172 (further publicity requirements: Part 4) is amended as follows.

(2) In subsection (2)—

(a) 35after the words before paragraph (a) insert—

(za) any extension by it under section 137 of the period
within which a report under section 136 is to be
prepared and published;

(zb) any extension by it under section 138A of the period
40within which its duty under section 138(2) is to be
discharged;, and

(b) after paragraph (b) insert—

(ba) any extension by it under section 144 of the period
within which a report under section 142 is to be
45prepared and action is to be taken in relation to it;.

Enterprise and Regulatory Reform BillPage 193

(3) After subsection (7) insert—

(7A) Subsection (6) shall not apply in relation to any case falling within
subsection (1)(a).

15 (1) Section 181 (orders under Part 4) is amended as follows.

(2) 5In subsection (3), for “136(9), 137(3)” substitute “131C(1), 136(9), 137(3),
138B(6)”.

(3) In subsection (4), for “137(3)” substitute “131C(1), 137(3), 138B(6)”.

16 In section 184 (index of defined expressions in Part 4), after the entry in the
table for “market investigation reference” insert—

Market study notice 10Section 130A(1)
“Market study report Section 131B(4)

Section 33

SCHEDULE 13 Extension of powers to issue warrants under the 1998 Act to CAT

1 The 1998 Act is amended as follows.

2 (1) 15Section 28 (power to enter business premises under a warrant) is amended
as follows.

(2) In subsection (1), for the words before paragraph (a) substitute “On an
application made to it by the CMA, the court or the Tribunal may issue a
warrant if it is satisfied that—”.

(3) 20In subsection (3), for “the judge” substitute “the court or (as the case may be)
the Tribunal”.

(4) After subsection (7) insert—

(7A) An application for a warrant under this section must be made—

(a) in the case of an application to the court, in accordance with
25rules of court;

(b) in the case of an application to the Tribunal, in accordance
with Tribunal rules.

3 (1) Section 28A (power to enter domestic premises under a warrant) is amended
as follows.

(2) 30In subsection (1), for the words before paragraph (a) substitute “On an
application made to it by the CMA, the court or the Tribunal may issue a
warrant if it is satisfied that—”.

(3) In subsection (3), for “the judge” substitute “the court or (as the case may be)
the Tribunal”.

(4) 35After subsection (8) insert—

(8A) An application for a warrant under this section must be made—

Enterprise and Regulatory Reform BillPage 194

(a) in the case of an application to the court, in accordance with
rules of court;

(b) in the case of an application to the Tribunal, in accordance
with Tribunal rules.

4 5In section 61 (interpretation of Part 2), after the definition of “the Treaty”
insert—

5 (1) 10Section 62 (power to enter business premises under a warrant: Article 20
inspections) is amended as follows.

(2) In subsection (1), for the words before paragraph (a) substitute “On an
application made to it by the CMA, the High Court or the Tribunal must
issue a warrant if it is satisfied that—”.

(3) 15After subsection (8) insert—

(8A) An application for a warrant under this section must be made—

(a) in the case of an application to the High Court, in accordance
with rules of court;

(b) in the case of an application to the Tribunal, in accordance
20with Tribunal rules.

6 (1) Section 62A (power to enter non-business premises under a warrant: Article
21 inspections) is amended as follows.

(2) In subsection (1), for the words before paragraph (a) substitute “On an
application made to it by the CMA, the High Court or the Tribunal must
25issue a warrant if it is satisfied that—”.

(3) After subsection (10) insert—

(10A) An application for a warrant under this section must be made—

(a) in the case of an application to the High Court, in accordance
with rules of court;

(b) 30in the case of an application to the Tribunal, in accordance
with Tribunal rules.

7 (1) Section 63 (power to enter business premises under a warrant: Article 22(2)
inspections) is amended as follows.

(2) In subsection (1), for the words before paragraph (a) substitute “On an
35application made to it by the CMA, the High Court or the Tribunal must
issue a warrant if it is satisfied that—”.

(3) After subsection (8) insert—

(8A) An application for a warrant under this section must be made—

(a) in the case of an application to the High Court, in accordance
40with rules of court;

(b) in the case of an application to the Tribunal, in accordance
with Tribunal rules.

8 In section 65C (interpretation of Part 2A), in subsection (2), after the entry for

Enterprise and Regulatory Reform BillPage 195

“the Treaty” (but before the “and” following it) insert—

9 (1) Section 65G (power to enter business premises under a warrant: Article 22(1)
5investigations) is amended as follows.

(2) In subsection (1), for the words before paragraph (a) substitute “On an
application made to it by the CMA, the court or the Tribunal may issue a
warrant if it is satisfied that—”.

(3) In subsection (3), for “the judge” substitute “the court or (as the case may be)
10the Tribunal”.

(4) After subsection (8) insert—

(8A) An application for a warrant under this section must be made—

(a) in the case of an application to the court, in accordance with
rules of court;

(b) 15in the case of an application to the Tribunal, in accordance
with Tribunal rules.

10 (1) Section 65H (power to enter domestic premises under a warrant: Article
22(1) investigations) is amended as follows.

(2) In subsection (1), for the words before paragraph (a) substitute “On an
20application made to it by the CMA, the court or the Tribunal may issue a
warrant if it is satisfied that—”.

(3) In subsection (3), for “the judge” substitute “the court or (as the case may be)
the Tribunal”.

(4) After subsection (8) insert—

(8A) 25An application for a warrant under this section must be made—

(a) in the case of an application to the court, in accordance with
rules of court;

(b) in the case of an application to the Tribunal, in accordance
with Tribunal rules.

Section 43(5)

30SCHEDULE 14 Regulators: use of powers under the 1998 Act

Gas Act 1986 (c. 44)Gas Act 1986 (c. 44)

1 The Gas Act 1986 is amended as follows.

2 (1) Section 28 (orders for securing compliance) is amended as follows.

(2) 35In subsections (1), (2) and (4), for “(5) and” (in each place where it occurs)
substitute “(4A) to”.

Enterprise and Regulatory Reform BillPage 196

(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) 5The Authority 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.

(4) In subsection (5), omit paragraph (c) and the “or” preceding it.

(5) In subsection (6)—

(a) 10in the words before paragraph (a), after “the Authority” insert
“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) 15Before imposing a penalty on a regulated person under
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
20to proceed under the Competition Act 1998.

Electricity Act 1989 (c. 29)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)
25substitute “(4A) to”.

(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) 30The Authority 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.

(4) In subsection (5), omit paragraph (d) and the “or” preceding it.

(5) In subsection (6)—

(a) 35in the words before paragraph (a), after “the Authority” insert
“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) 40Before imposing a penalty on a regulated person under
subsection (1), the Authority shall consider whether it would be
more appropriate to proceed under the Competition Act 1998.

Enterprise and Regulatory Reform BillPage 197

(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
5words from the beginning to “(3) above” substitute “If any question arises as
to whether subsection (2) or (3) above applies to any particular case”.

Water Industry Act 1991 (c. 56)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) 10For subsection (1A) substitute—

(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
15provisional enforcement order if it considers that it would be more
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
20appropriate to proceed under the Competition Act 1998”, and

(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
25Competition Act 1998.

(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)Railways Act 1993 (c. 43)

11 30The Railways Act 1993 is amended as follows.

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
35be more appropriate to proceed under the Competition Act 1998.

(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)”.

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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) 5The Office of Rail Regulation must not impose a penalty under this
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)
10above” substitute “If any question arises as to whether subsection (2) or (3)
above applies to any particular case”.

Transport Act 2000 (c. 38)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) 15In subsection (1), omit paragraph (b) and the “or” preceding it.

(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) 20The CAA must not make a final order or make or confirm a
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)Communications Act 2003 (c. 21)

16 The Communications Act 2003 is amended as follows.

17 25In section 94 (notification of contravention of SMP apparatus conditions), for
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) 30OFCOM must not give a notification under this section if they
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
35statement 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.

18 In section 96A (notification of contravention of condition other than SMP
apparatus condition), for subsection (5) substitute—

(5) 40Before giving a notification under this section, OFCOM must
consider whether it would be more appropriate to proceed under the
Competition Act 1998.

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(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
5proceed under the Competition Act 1998, they must publish a
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)2011 (c. 5)

19 10In Schedule 7 to the Postal Services Act 2011 (enforcement of regulatory
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) 15OFCOM must not give a notification under paragraph 2 if they
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
20statement 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.

Health and Social Care Act 2012 (c. 7)2012 (c. 7)

20 The Health and Social Care Act 2012 is amended as follows.

21 25In section 105 (discretionary requirements), after subsection (3) insert—

(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
30person if it considers that it would be more appropriate to proceed
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
35would be more appropriate to proceed under the Competition Act
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.

40The Electricity (Northern Ireland) Order 1992 (S.I. 1992/231 (N.I. 1)S.I. 1992/231 (N.I. 1))

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

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