Consumer Rights Bill (HC Bill 161)

(b) is not such a person, but the Tribunal considers that it is just
and reasonable for that person to act as the settlement
representative in relation to that settlement.

(8) Where the Tribunal has made a collective settlement order, it may
5make an order approving a proposed collective settlement only if
satisfied that its terms are just and reasonable.

(9) A collective settlement approved by the Tribunal is binding on all
persons falling within the class of persons described in the collective
settlement order.

(10) 10But a collective settlement is not binding on a person who—

(a) opts out by notifying the settlement representative, in a
manner and by a time specified, that the claim should not be
included in the collective settlement, or

(b) is not domiciled in the United Kingdom at a time specified,
15and does not, in a manner and by a time specified, opt in by
notifying the settlement representative that the claim should
be included in the collective settlement.

(11) In this section, “settlement representative” means a person who is
authorised by a collective settlement order to act in relation to a
20collective settlement.”

(2) Section 49B of the Competition Act 1998 applies to claims arising before the
commencement of this paragraph as it applies to claims arising after that
time.

12 After section 49B (inserted by paragraph 11) insert—

“49C 25Approval of redress schemes by the CMA

(1) A person may apply to the CMA for approval of a redress scheme.

(2) The CMA may consider an application before the infringement
decision to which the redress scheme relates has been made, but may
approve the scheme only—

(a) 30after that decision has been made, or

(b) in the case of a decision of the CMA, at the same time as that
decision is made.

(3) In deciding whether to approve a redress scheme, the CMA may take
into account the amount or value of compensation offered under the
35scheme.

(4) An approved scheme may not be varied by the CMA or the
compensating party.

(5) The Secretary of State may make regulations relating to the approval
of redress schemes, and the regulations may in particular—

(a) 40make provision as to the procedure governing an application
for approval of a redress scheme, including the information
to be provided with the application;

(b) provide that the CMA may approve a redress scheme only if
it has been devised according to a process specified in the
45regulations;

(c) provide that the CMA may approve a redress scheme only if
it is in a form, or contains terms, specified in the regulations
(which may include terms requiring a settlement agreement
under the scheme to be in a form, or contain terms, specified
5in the regulations);

(d) provide that the CMA may approve a redress scheme only if
(so far as the CMA can judge from facts known to it) the
scheme is intended to be administered in a manner specified
in the regulations;

(e) 10describe factors which the CMA may or must take into
account, or may not take into account, in deciding whether to
approve a redress scheme.

(6) The CMA must publish guidance with regard to—

(a) applications for approval of redress schemes,

(b) 15the approval of redress schemes, and

(c) the enforcement of approved schemes, and in particular as to
the criteria which the CMA intends to adopt in deciding
whether to bring proceedings under section 49E(4).

(7) Guidance under subsection (6) must be approved by the Secretary of
20State before it is published.

(8) In this section and sections 49D and 49E—

• “approved scheme” means a redress scheme approved by the
  CMA,

• “compensating party” means a person offering compensation
  25under an approved scheme,

• “infringement decision” means—

  (a)

  a decision of the CMA that the Chapter I prohibition,
  the Chapter II prohibition, the prohibition in Article
  101(1) or the prohibition in Article 102 has been
  30infringed, or

  (b)

  a decision of the Commission that the prohibition in
  Article 101(1) or the prohibition in Article 102 has
  been infringed, and

• “redress scheme” means a scheme under which a person offers
  35compensation in consequence of an infringement decision
  made in respect of that person.

(9) For the purposes of this section and section 49E, “compensation”—

(a) may be monetary or non-monetary, and

(b) may be offered to persons who have not suffered a loss as a
40result of the infringement decision to which the redress
scheme relates.

49D Redress schemes: recovery of costs

(1) The CMA may require a person making an application for approval
of a redress scheme to pay some or all of the CMA’s reasonable costs
45relating to the application.

(2) A requirement to pay costs is imposed by giving that person written
notice specifying—

(a) the amount to be paid,

(b) how that amount has been calculated, and

(c) by when that amount must be paid.

(3) A person required to pay costs under this section may appeal to the
Tribunal against the amount.

(4) 5Where costs required to be paid under this section relate to an
approved scheme, the CMA may withdraw approval from that
scheme if the costs have not been paid by the date specified in
accordance with subsection (2)(c).

(5) Costs required to be paid under this section are recoverable by the
10CMA as a debt.

49E Enforcement of approved schemes

(1) A compensating party is under a duty to comply with the terms of an
approved scheme (“the duty”).

(2) The duty is owed to any person entitled to compensation under the
15terms of the approved scheme.

(3) Where such a person suffers loss or damage as a result of a breach of
the duty, the person may bring civil proceedings before the court for
damages, an injunction or interdict or any other appropriate relief or
remedy.

(4) 20Where the CMA considers that the compensating party is in breach
of the duty, the CMA may bring civil proceedings before the court
for an injunction or interdict or any other appropriate relief or
remedy.

(5) Subsection (4) is without prejudice to any right that a person has to
25bring proceedings under subsection (3).

(6) In any proceedings brought under subsection (3) or (4), it is a defence
for the compensating party to show that it took all reasonable steps
to comply with the duty.

(7) Where the CMA considers that it is no longer appropriate for the
30compensating party to be subject to the duty, the CMA may give
notice in writing to that party stating that it is released from the duty.

(8) Where a person has entered into a settlement agreement with the
compensating party, that agreement remains enforceable
notwithstanding the release of the compensating party under
35subsection (7) from the duty.

(9) In this section “the court” means—

(a) in England and Wales, the High Court or the county court,

(b) in Northern Ireland, the High Court or a county court,

(c) in Scotland, the Court of Session or the sheriff.”

13 (1) 40Section 58 (findings of fact by OFT) is amended in accordance with this
paragraph.

(2) In subsection (1), after “the court” insert “or the Tribunal”.

(3) In subsection (2)—

(a) in the definition of “Part I proceedings”, before paragraph (a)

insert—

“(za) in respect of an infringement decision;”;

(b) in the definition of “relevant party”, in paragraphs (a) and (b), for “is
alleged to have infringed the prohibition” substitute “has been found
5to have infringed the prohibition or is alleged to have infringed the
prohibition (as the case may be)”.

(4) In subsection (3)—

(a) after “Rules of court” insert “or Tribunal rules”, and

(b) after “the court” insert “or the Tribunal”.

(5) 10After subsection (3) insert—

“(4) In this section “the court” means—

(a) in England and Wales or Northern Ireland, the High Court,

(b) in Scotland, the Court of Session or the sheriff.”

14 (1) For section 58A substitute—

“58A 15Infringement decisions

(1) This section applies to a claim in respect of an infringement decision
which is brought in proceedings—

(a) before the court, or

(b) before the Tribunal under section 47A or 47B.

(2) 20The court or the Tribunal is bound by the infringement decision once
it has become final.

(3) An infringement decision specified in section 47A(5)(a) or (b)
becomes final—

(a) when the time for appealing against that decision expires
25without an appeal having been brought;

(b) where the decision is specified in section 47A(5)(a) and an
appeal has been brought against the decision under section
46 or 47, when that appeal—

(i) has been withdrawn, dismissed or otherwise
30discontinued, or

(ii) has confirmed the infringement decision and the time
for making any further appeal against that
confirmatory decision expires without a further
appeal having been brought;

(c) 35where an appeal has been brought in relation to the decision
under section 49, when that appeal—

(i) in the case of an appeal against the infringement
decision or against a decision which confirmed the
infringement decision, has been withdrawn,
40dismissed or otherwise discontinued, or

(ii) has confirmed the infringement decision and the time
for making any further appeal to the Supreme Court
against that confirmatory decision expires without a
further appeal having been brought; or

(d) 45where an appeal has been brought to the Supreme Court in
relation to the decision, when that appeal—

(i) in the case of an appeal against a decision which
confirmed the infringement decision, has been
withdrawn, dismissed or otherwise discontinued, or

(ii) has confirmed the infringement decision.

(4) 5An infringement decision specified in section 47A(5)(c) becomes
final—

(a) when the time for appealing against that decision in the
European Court expires without an appeal having been
brought; or

(b) 10where such an appeal has been brought against the decision,
when that appeal—

(i) has been withdrawn, dismissed or otherwise
discontinued, or

(ii) has confirmed the infringement decision.

(5) 15This section applies to the extent that the court or the Tribunal would
not otherwise be bound by the infringement decision in question.

(6) In this section “the court” means—

(a) in England and Wales or Northern Ireland, the High Court,

(b) in Scotland, the Court of Session or the sheriff.”

(2) 20Section 58A of the Competition Act 1998 (as substituted by sub-paragraph
(1)) does not apply in relation to decisions made before the commencement
of this paragraph.

15 (1) Section 59 (interpretation of Part 1) is amended in accordance with this
paragraph.

(2) 25In subsection (1), at the appropriate places insert—

• ““class member” has the meaning given in section 47B(8)(a);”;

• ““collective proceedings” has the meaning given in section
  47B(1);”;

• ““collective proceedings order” means an order made by the
  30Tribunal authorising the continuance of collective
  proceedings;”;

• ““infringement decision”, except in section 49C, has the
  meaning given in section 47A(5);”;

• ““injunction” includes an interim injunction;”;

• 35““opt-in collective proceedings” has the meaning given in
  section 47B(10);”;

• ““opt-out collective proceedings” has the meaning given in
  section 47B(11);”;

• ““representative” means a person who is authorised by a
  40collective proceedings order to bring collective
  proceedings;”;

• ““represented person” means a class member who—

  (a)

  has opted in to opt-in collective proceedings,

  (b)

  was domiciled in the United Kingdom at the time
  45specified for the purposes of determining domicile
  (see section 47B(11)(b)(i)) and has not opted out of
  opt-out collective proceedings, or

  (c)

  has opted in to opt-out collective proceedings;”.

(3) In subsection (1), in the definition of “the court”, before “58” insert “49E,”.

(4) After subsection (1) insert—

“(1A) In this Part, in respect of proceedings in Scotland, “defendant” is to
be read as “defender”.

(1B) 5Sections 41, 42, 45 and 46 of the Civil Jurisdiction and Judgments Act
1982 apply for the purpose of determining whether a person is
regarded as “domiciled in the United Kingdom” for the purposes of
this Part.”

16 In section 71 (regulations, orders and rules), after subsection (4)(ca) insert—

“(cb) 10section 47C(6),”.

17 (1) Schedule 8 (appeals) is amended in accordance with this paragraph.

(2) In paragraph 2(1), for “46 or 47” substitute “46, 47 or 49D(3)”.

(3) After paragraph 3A insert—

“3B (1) This paragraph applies to an appeal under section 49D(3).

(2) 15The Tribunal must determine the appeal on the merits by
reference to the grounds of appeal set out in the notice of appeal.

(3) The Tribunal may—

(a) approve the amount of costs which is the subject of the
appeal, or

(b) 20impose a requirement to pay costs of a different amount.

(4) The Tribunal may also give such directions, or take such other
steps, as the CMA could itself have given or taken.

(5) A requirement imposed by the Tribunal under sub-paragraph
(3)(b) has the same effect, and may be enforced in the same
25manner, as a requirement imposed by the CMA under section
49D.”

Part 2 Enterprise Act 2002

18 The Enterprise Act 2002 is amended in accordance with this Part.

19 (1) 30Section 14 (constitution of Tribunal for particular proceedings and its
decisions) is amended as follows.

(2) In subsection (1), after “before it” insert “, including proceedings relating to
the approval of a collective settlement under section 49A or 49B of the 1998
Act,”.

(3) 35After subsection (1) insert—

“(1A) But in the case of proceedings relating to a claim under section 47A
of the 1998 Act which is subject to the fast-track procedure (as
described in Tribunal rules), the Tribunal may consist of a chairman
only.”

20 In section 15 (Tribunal rules), in subsection (1), at the end insert “, including
proceedings relating to the approval of a collective settlement under section
49A or 49B of the 1998 Act.”

21 In section 16 (transfers of certain proceedings to and from Tribunal), in
5subsection (5), for “High Court or the Court of Session of” substitute “court
of all or any part of”.

22 Schedule 4 (Tribunal: procedure) is amended in accordance with the
following paragraphs of this Part.

23 In paragraph 1 (decisions of the Tribunal), for sub-paragraph (1)(a)
10substitute—

“(a) state the reasons for the decision;

(aa) state whether the decision was unanimous or taken by a
majority or, where proceedings are heard by a chairman
only, state that fact;”.

24 15After paragraph 1 insert—

“Enforcement of injunctions in England and Wales and Northern Ireland

1A (1) Where a person (“A”) fails to comply with an injunction granted
by the Tribunal in proceedings under section 47A or 47B of the
1998 Act, the Tribunal may certify the matter to the High Court.

(2) 20The High Court may enquire into the matter.

(3) If, after hearing any witnesses who may be produced against or on
behalf of A, and any statement made by or on behalf of A, the High
Court is satisfied that A would have been in contempt of court if
the injunction had been granted by the High Court, the High
25Court may deal with A as if A were in contempt.”

25 In each of paragraphs 4(c) and 5(1)(c)—

(a) for “47B(6)” substitute “47C(3) or (4)”; and

(b) for “specified body concerned” substitute “representative in the
proceedings under section 47B of that Act”.

26 30In paragraph 6—

(a) for sub-paragraph (a) substitute—

“(a) awards damages to a person in respect of a claim
made or continued on behalf of that person (but is
not the subject of an order under section 47C(3) or
35(4) of that Act); or”;

(b) in sub-paragraph (b)—

(i) for “an individual” substitute “a person”,

(ii) for “his behalf” substitute “behalf of that person”; and

(c) in the full-out words at the end, for “individual” substitute “person”.

27 40In paragraph 7—

(a) for “specified body” substitute “representative”; and

(b) for “individual” substitute “person”.

28 In paragraph 9—

(a) the existing provision is numbered as sub-paragraph (1), and

(b) after that provision insert—

“(2) In this Schedule, where a paragraph is capable of applying
to proceedings relating to the approval of a collective
settlement under section 49A or 49B of the 1998 Act, any
5reference in that paragraph to “proceedings” includes a
reference to those proceedings.”

29 In paragraph 11(2), for paragraph (a) substitute—

“(a) make further provision as to procedural aspects of the
operation of the limitation or prescriptive periods in
10relation to claims which may be made in proceedings
under section 47A of the 1998 Act, as set out in section
47E(3) to (6) of that Act;”.

30 For paragraph 13 substitute—

“13 (1) Tribunal rules may provide for the Tribunal—

(a) 15to reject a claim made under section 47A of the 1998 Act or
a section 47B claim if it considers that there are no
reasonable grounds for making it;

(b) to reject a section 47B claim if—

(i) the Tribunal declines to make a collective
20proceedings order in respect of the proceedings
under section 47B of the 1998 Act,

(ii) the Tribunal makes a collective proceedings order
in respect of the proceedings, but the order does
not provide that the claim in question is eligible for
25inclusion in the proceedings,

(iii) the Tribunal revokes the collective proceedings
order in respect of the proceedings, or

(iv) the Tribunal varies the collective proceedings order
in such a way that the claim in question is no longer
30included in the proceedings;

(c) to reject a section 47B claim if the claim had been
previously made in proceedings under section 47A of the
1998 Act by a person who has not consented to its being
continued in proceedings under section 47B of that Act.

(2) 35In this paragraph, “a section 47B claim” means a claim made in
proceedings under section 47B of the 1998 Act at the
commencement of those proceedings.”

31 After paragraph 15 insert—

“Fast-track procedure

15A (1) 40Tribunal rules may make provision in relation to a fast-track
procedure for claims made in proceedings under section 47A of
the 1998 Act, including describing the factors relevant to
determining whether a claim is suitable to be dealt with according
to that procedure.

(2) 45Tribunal rules may make different provision for claims in
proceedings under section 47A of the 1998 Act which are and
which are not subject to the fast-track procedure.

(3) Tribunal rules may, in particular, provide for the Tribunal to—

(a) grant an interim injunction on a claim in proceedings
under section 47A of the 1998 Act which is subject to the
fast-track procedure to a person who has not given an
5undertaking as to damages, or

(b) impose a cap on the amount that a person may be required
to pay under an undertaking as to damages given on the
granting of such an interim injunction.

(4) In sub-paragraph (3) “an undertaking as to damages” means an
10undertaking to pay damages which a person sustains as a result of
the interim injunction and which the Tribunal considers the
person to whom the injunction is granted should pay.

Collective proceedings

15B (1) Tribunal rules may make provision in relation to collective
15proceedings under section 47B of the 1998 Act.

(2) Rules under sub-paragraph (1) must in particular make provision
as to the following matters—

(a) the procedure governing an application for a collective
proceedings order;

(b) 20the factors which the Tribunal must take into account in
deciding whether a claim is suitable to be brought in
collective proceedings (but rules need not make provision
in connection with the determination as to whether claims
raise the same, similar or related issues of fact or law);

(c) 25the factors which the Tribunal must take into account in
deciding whether to authorise a person to act as a
representative in collective proceedings;

(d) the procedure by which the Tribunal is to reach a decision
as to whether to make a collective proceedings order;

(e) 30the procedure by which a person may opt in or opt out of
collective proceedings;

(f) the factors which the Tribunal must take into account in
deciding whether to vary or revoke a collective
proceedings order;

(g) 35the assessment of damages in collective proceedings;

(h) the payment of damages in collective proceedings,
including the procedure for publicising an award of
damages;

(i) the effect of judgments and orders in collective
40proceedings.

Collective settlements

15C (1) Tribunal rules may make provision in relation to collective
settlements under sections 49A and 49B of the 1998 Act.

(2) Rules under sub-paragraph (1) must in particular make provision
45as to the following matters—

(a) the procedure governing an application for approval of a
proposed collective settlement;

(b) where section 49B applies, the factors which the Tribunal
must take into account in deciding whether to make a
collective settlement order (but rules need not make
provision in connection with the determination as to
5whether claims raise the same, similar or related issues of
fact or law);

(c) where section 49B applies, the factors which the Tribunal
must take into account in deciding whether to authorise a
person to act as a settlement representative in relation to a
10collective settlement;

(d) where section 49B applies, the procedure by which the
Tribunal is to reach a decision as to whether to make a
collective settlement order;

(e) the factors which the Tribunal must take into account in
15deciding whether to approve a proposed collective
settlement;

(f) the procedure by which the Tribunal is to reach a decision
as to whether to approve a collective settlement;

(g) the procedure by which a person may opt in or opt out of
20a collective settlement;

(h) the payment of compensation under a collective
settlement, including the procedure for publicising a
compensation award.”

32 In paragraph 17 (conduct of the hearing)—

(a) 25after sub-paragraph (1)(h) insert—

“(ha) allowing the Tribunal to order payments in respect
of the representation of a party to proceedings
under section 47A or 47B of the 1998 Act, where the
representation by a legal representative was
30provided free of charge;”;

(b) in sub-paragraph (2)—

(i) for “an individual” substitute “a person”; and

(ii) for “that individual” substitute “that person”;

(c) in sub-paragraph (3), for “an individual” substitute “a person”.

33 35After paragraph 20 insert—

“Stay or sist of proceedings

20A (1) In relation to proceedings in England and Wales or Northern
Ireland under section 47A or 47B of the 1998 Act, Tribunal rules
may make provision as to the stay of the proceedings, including as
40to—

(a) the circumstances in which a stay may be ordered or
removed at the request of a party to the proceedings,

(b) the circumstances in which the proceedings may be stayed
at the instance of the Tribunal, and

(c) 45the procedure to be followed.

(2) In relation to proceedings in Scotland under section 47A or 47B of
the 1998 Act, Tribunal rules may make provision as to the sist of
the proceedings, including as to—