|
| |
|
| |
23 (1) | The application of Monitor’s seal must be authenticated by the signature of |
| |
the chair or any other person who has been authorised (generally or |
| |
specifically) for that purpose. |
| |
(2) | A document purporting to be duly executed under Monitor’s seal or to be |
| 5 |
signed on its behalf must be received in evidence and, unless the contrary is |
| |
proved, taken to be so executed or signed. |
| |
| |
24 (1) | Monitor must not be regarded as the servant or agent of the Crown or as |
| |
enjoying any status, immunity or privilege of the Crown. |
| 10 |
(2) | Monitor’s property must not be regarded as property of, or property held on |
| |
| |
| |
| |
Requirements under section 75: undertakings |
| |
| 15 |
1 (1) | Monitor must publish a procedure for entering into section 77 undertakings. |
| |
(2) | Monitor may revise the procedure and, if it does so, Monitor must publish |
| |
the procedure as revised. |
| |
(3) | Monitor must consult such persons as it considers appropriate before |
| |
publishing or revising the procedure. |
| 20 |
2 (1) | Where Monitor accepts a section 77 undertaking, Monitor must publish the |
| |
| |
(2) | But Monitor must not under sub-paragraph (1) publish any part of a section |
| |
77 undertaking which contains information which it is satisfied is— |
| |
(a) | commercial information the disclosure of which would, or might, |
| 25 |
significantly harm the legitimate business interests of the person to |
| |
| |
(b) | information relating to the private affairs of an individual the |
| |
disclosure of which would, or might, significantly harm that |
| |
| 30 |
| |
3 | The terms of a section 77 undertaking (including, in particular, the action |
| |
specified under it and the period so specified within which the action must |
| |
be taken) may be varied if both the person giving the undertaking and |
| |
| 35 |
|
| |
|
| |
|
| |
4 (1) | Where Monitor is satisfied that a section 77 undertaking has been complied |
| |
with, Monitor must issue a certificate to that effect (referred to in this |
| |
Schedule as a “compliance certificate”). |
| |
(2) | A person who has given a section 77 undertaking may at any time make an |
| 5 |
application to Monitor for a compliance certificate. |
| |
(3) | The application must be made in such form, and accompanied by such |
| |
information, as Monitor requires. |
| |
(4) | Monitor must decide whether or not to issue a compliance certificate, and |
| |
give notice to the applicant of its decision, before the end of the period of 14 |
| 10 |
days beginning with the day after that on which the application is received. |
| |
5 (1) | An appeal lies to the First-tier Tribunal against a decision of Monitor to |
| |
refuse an application for a compliance certificate. |
| |
(2) | The grounds for an appeal under this paragraph are that the decision was— |
| |
(a) | based on an error of fact, |
| 15 |
| |
(c) | unfair or unreasonable. |
| |
(3) | On an appeal under this paragraph, the Tribunal may confirm Monitor’s |
| |
decision or direct that it is not to have effect. |
| |
Inaccurate, incomplete or misleading information |
| 20 |
6 | Where Monitor is satisfied that a person who has given a section 77 |
| |
undertaking has supplied Monitor with inaccurate, misleading or incorrect |
| |
information in relation to the undertaking— |
| |
(a) | Monitor may treat the person as having failed to comply with the |
| |
| 25 |
(b) | if Monitor decides so to treat the person, Monitor must by notice |
| |
revoke any certificate of compliance given to that person. |
| |
| |
| |
References by Monitor to the Competition Commission |
| |
| 30 |
1 (1) | Monitor may, at any time, by notice given to the Competition Commission |
| |
| |
(a) | by adding to the matters specified in the reference, or |
| |
(b) | by excluding from the reference some of the matters so specified. |
| |
(2) | On receipt of a notice under sub-paragraph (1), the Commission must give |
| 35 |
| |
|
| |
|
| |
|
Monitor’s opinion of public interest etc. |
| |
2 | Monitor may specify in a reference, or a variation under paragraph 1, for the |
| |
purpose of assisting the Competition Commission in carrying out the |
| |
investigation on the reference— |
| |
(a) | any effects adverse to the public interest which Monitor considers |
| 5 |
the matters specified in the reference or variation have or may be |
| |
| |
(b) | any changes in relation to those matters by which Monitor considers |
| |
those effects could be remedied or prevented. |
| |
Publication etc. of reference |
| 10 |
3 | As soon as practicable after making a reference, or a variation under |
| |
| |
(a) | must send a copy of the reference or variation to the relevant |
| |
| |
(b) | must publish particulars of the reference or variation. |
| 15 |
| |
4 (1) | Monitor must, for the purpose of assisting the Competition Commission in |
| |
carrying out an investigation on a reference, or in carrying out the function |
| |
under paragraph 8, give the Commission— |
| |
(a) | such information in Monitor’s possession as relates to matters within |
| 20 |
the scope of the investigation or the carrying out of the function |
| |
| |
(i) | is requested by the Commission for that purpose, or |
| |
(ii) | is information which Monitor considers it would be |
| |
appropriate for that purpose to give to the Commission |
| 25 |
| |
(b) | such other assistance as the Commission may require, and as is |
| |
within Monitor’s power to give, in relation to any such matters. |
| |
(2) | The Commission must, for the purpose of carrying out the investigation or |
| |
the function, take account of such information as is given to it for that |
| 30 |
purpose under sub-paragraph (1). |
| |
| |
5 (1) | A reference must specify a period within which the Competition |
| |
Commission must make a report on the reference. |
| |
(2) | A period specified for the purposes of sub-paragraph (1) must not be longer |
| 35 |
than six months beginning with the date of the reference. |
| |
(3) | A report of the Commission on a reference does not have effect (and no |
| |
action may be taken in relation to it under paragraph 7) unless the report is |
| |
| |
(a) | the period specified in the reference, or |
| 40 |
(b) | such further period as is allowed under sub-paragraph (4). |
| |
(4) | Monitor may, if it receives representations on the subject from the |
| |
Competition Commission and is satisfied that there are special reasons why |
| |
|
| |
|
| |
|
the report cannot be made within the period specified in the reference, |
| |
extend the period by no more than six months. |
| |
(5) | But Monitor may not make more than one extension under sub-paragraph |
| |
(4) in relation to the same reference. |
| |
(6) | Where Monitor makes an extension under sub-paragraph (4), it must send |
| 5 |
notice of the extension to the relevant persons. |
| |
(7) | Monitor must also publish the notice. |
| |
| |
6 (1) | In making a report on a reference, the Competition Commission— |
| |
(a) | must include in the report definite conclusions on the questions in |
| 10 |
the reference together with such an account of its reasons for those |
| |
conclusions as it considers expedient for facilitating a proper |
| |
understanding of those questions and of its conclusions, |
| |
(b) | where it concludes that any of the matters specified in the reference |
| |
operate, or may be expected to operate, against the public interest, |
| 15 |
must specify in the report the effects adverse to the public interest |
| |
which those matters have or may be expected to have, and |
| |
(c) | where it concludes that any adverse effects so specified could be |
| |
remedied or prevented by changes in relation to the matters |
| |
specified in the reference, must specify in the report changes which |
| 20 |
could remedy or prevent those effects. |
| |
(2) | For the purposes of paragraphs 7 and 8, a conclusion in a report of the |
| |
Commission is to be disregarded if the conclusion is not that of at least two- |
| |
thirds of the members of the group constituted in connection with the |
| |
reference in pursuance of paragraph 15 of Schedule 7 to the Competition Act |
| 25 |
| |
(3) | If a member of a group so constituted disagrees with a conclusion in a report |
| |
made on a reference, the report must, if the member so wishes, include a |
| |
statement of the member’s disagreement and reasons for disagreeing. |
| |
(4) | A report of the Commission on a reference must be sent to Monitor. |
| 30 |
(5) | On receiving a report on a reference, Monitor must send a copy of it to the |
| |
| |
(6) | Not less than 14 days after the Secretary of State receives that copy, Monitor |
| |
must send a copy to the relevant persons. |
| |
(7) | Not less than 24 hours after complying with sub-paragraph (6), Monitor |
| 35 |
| |
| |
7 (1) | This paragraph applies where a report of the Competition Commission on a |
| |
| |
(a) | includes conclusions to the effect that any of the matters specified in |
| 40 |
the reference operate, or may be expected to operate, against the |
| |
| |
(b) | specifies effects adverse to the public interest which those matters |
| |
have or may be expected to have, |
| |
|
| |
|
| |
|
(c) | includes conclusions to the effect that those effects could be |
| |
remedied or prevented by changes to the matters specified in the |
| |
| |
(d) | specifies changes by which those effects could be remedied or |
| |
| 5 |
(2) | Monitor must make such changes to the matters specified in the reference as |
| |
it considers necessary for the purpose of remedying or preventing the |
| |
adverse effects specified in the report. |
| |
(3) | Before making changes under this paragraph, Monitor must have regard to |
| |
the changes specified in the report. |
| 10 |
(4) | Before making changes under this paragraph, Monitor must send a notice— |
| |
(a) | stating that it proposes to make the changes and setting out their |
| |
| |
(b) | stating the reasons why it proposes to make the changes, and |
| |
(c) | specifying the period within which representations with respect to |
| 15 |
| |
(5) | A period specified for the purposes of sub-paragraph (4)(c) must not be less |
| |
than 28 days beginning with the day after that on which the notice is |
| |
| |
(6) | Monitor must send the notice to the relevant persons. |
| 20 |
(7) | Monitor must also publish the notice. |
| |
(8) | After considering such representations as it receives before the end of the |
| |
period specified under sub-paragraph (4)(c), Monitor must send a notice to |
| |
the Competition Commission— |
| |
(a) | specifying the changes it proposes to make to remedy or prevent the |
| 25 |
adverse effects specified in the report, and |
| |
(b) | stating the reasons for proposing to make the changes. |
| |
(9) | Monitor must include with the notice under sub-paragraph (8) a copy of the |
| |
representations referred to in that sub-paragraph. |
| |
(10) | If a direction under paragraph 8 is not given to Monitor before the end of the |
| 30 |
period of four weeks beginning with the date on which it sends the notice |
| |
under sub-paragraph (8), Monitor must make the changes specified in the |
| |
| |
(11) | If a direction under that paragraph is given to Monitor before the end of that |
| |
period, Monitor must make such of the changes as are not specified in the |
| 35 |
| |
Competition Commission’s power to veto changes |
| |
8 (1) | The Competition Commission may, within the period of four weeks |
| |
beginning with the day on which it is sent a notice under paragraph 7(8), |
| |
| 40 |
(a) | not to make the changes set out in the notice, or |
| |
(b) | not make such of the changes as may be specified in the direction. |
| |
(2) | Monitor must comply with a direction under sub-paragraph (1). |
| |
|
| |
|
| |
|
(3) | The Secretary of State may, within that period and on the application of the |
| |
Commission, direct that the period for giving a direction under sub- |
| |
paragraph (1) (and, accordingly, the period referred to in paragraph 7(10)) is |
| |
to be extended by 14 days. |
| |
(4) | The Commission may give a direction under sub-paragraph (1) only in |
| 5 |
respect of such of the changes specified in the notice under paragraph 7(8)(a) |
| |
as it considers are not necessary for the purpose of remedying or preventing |
| |
one or more of the adverse effects specified in the report as effects which |
| |
could be remedied or prevented by changes. |
| |
(5) | If the Commission gives a direction under sub-paragraph (1), it— |
| 10 |
(a) | must give notice specifying the changes proposed by Monitor, the |
| |
terms of the direction and the reasons for giving it, and |
| |
(b) | must itself make such changes to the matters specified in the |
| |
reference as it considers necessary for the purpose of remedying or |
| |
preventing the effects referred to in sub-paragraph (6). |
| 15 |
(6) | The effects mentioned in sub-paragraph (5)(b) are— |
| |
(a) | in the case of a direction under sub-paragraph (1)(a), the adverse |
| |
effects specified in the report as effects which could be remedied or |
| |
| |
(b) | in the case of a direction under sub-paragraph (1)(b), such of those |
| 20 |
adverse effects as are not remedied or prevented by the changes |
| |
made by Monitor under paragraph 7(11). |
| |
(7) | In exercising its function under sub-paragraph (5)(b), the Commission must |
| |
have regard to the matters to which Monitor must have regard when |
| |
determining the matters specified in the reference. |
| 25 |
(8) | Before making changes under sub-paragraph (5)(b), the Commission must |
| |
| |
(a) | stating that it proposes to make the changes and specifying them, |
| |
(b) | stating the reason why it proposes to make them, and |
| |
(c) | specifying the period within which representations on the proposed |
| 30 |
| |
(9) | The period specified for the purposes of sub-paragraph (8)(c) must not be |
| |
less than 28 days beginning with the date on which the notice is published. |
| |
(10) | The Commission must send a notice under sub-paragraph (8) to the relevant |
| |
| 35 |
(11) | The Commission must also publish the notice. |
| |
(12) | After making changes under this paragraph, the Commission must publish |
| |
| |
(a) | stating that it has made the changes and specifying them, and |
| |
(b) | stating the reason why it has made them. |
| 40 |
| |
9 (1) | Before making a report on a reference, giving or sending a notice under |
| |
paragraph 8(5)(a) or (8) or publishing a notice under paragraph 8(12), the |
| |
Competition Commission must have regard to the following considerations. |
| |
|
| |
|
| |
|
(2) | The first consideration is the need to exclude from disclosure (so far as |
| |
practicable) any information the disclosure of which the Commission |
| |
considers is contrary to the public interest. |
| |
(3) | The second consideration is the need to exclude from disclosure (so far as |
| |
| 5 |
(a) | commercial information the disclosure of which the Commission |
| |
considers would or might significantly harm the legitimate business |
| |
interests of the undertaking to which it relates, or |
| |
(b) | information relating to the private affairs of an individual whose |
| |
disclosure the Commission considers would or might significantly |
| 10 |
harm the individual’s interests. |
| |
(4) | The third consideration is the extent to which the disclosure of the |
| |
information mentioned in sub-paragraph (3)(a) or (b) is necessary for the |
| |
| |
(5) | For the purposes of the law relating to defamation, absolute privilege |
| 15 |
attaches to the report or notice. |
| |
| |
10 (1) | The following sections of Part 3 of the Enterprise Act 2002 (mergers) apply, |
| |
with the modifications in sub-paragraphs (3), (5), (6) and (8) to (11) for the |
| |
purposes of a reference as they apply for the purposes of references under |
| 20 |
| |
(a) | section 109 (attendance of witnesses and production of documents), |
| |
(b) | section 110 (enforcement of powers under section 109: general), |
| |
(c) | section 111 (penalties), |
| |
(d) | section 112 (penalties: main procedural requirements), |
| 25 |
(e) | section 113 (payments and interest by instalments), |
| |
(f) | section 114 (appeals in relation to penalties), |
| |
(g) | section 115 (recovery of penalties), |
| |
(h) | section 116 (statement of policy), |
| |
(i) | section 117 (offence of supplying false or misleading information), |
| 30 |
| |
(j) | section 125 (offences by bodies corporate) so far as relating to section |
| |
| |
(2) | Those sections of that Part of that Act apply, with the modifications in sub- |
| |
paragraphs (4), (5) and (7) to (11), for the purposes of an investigation by the |
| 35 |
Competition Commission in the exercise of its functions under paragraph 8, |
| |
as they apply for the purposes of an investigation on references under that |
| |
| |
(3) | Section 110, in its application by virtue of sub-paragraph (1), has effect as |
| |
| 40 |
(a) | subsection (2) were omitted, |
| |
(b) | for subsections (5) to (8) there were substituted— |
| |
“(5) | Where the Commission considers that a person has |
| |
intentionally altered, suppressed or destroyed a document |
| |
which he has been required to produce under section 109, it |
| 45 |
may impose a penalty in accordance with section 111.”, and |
| |
|
| |
|