Enterprise and Regulatory Reform Bill (HL Bill 45)

(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) The Secretary of State may by order amend section 138A so as to alter
5one 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) the period of 4 months mentioned in subsection (2) or any
10period 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) the period for the time being mentioned in section 138A(1)
15exceeding 6 months; or

(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
20State 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) 25After 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
30doing 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) 35after “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
40mentioned 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)”,

(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.”

5Time-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) 10In subsection (1)—

(a) after “services” insert “—

(a)”, and

(b) at the end insert “; and

(b) in a case in which the CMA has published a market
15study 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
20market 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
25prevent the making of a market investigation reference if the CMA
has accepted an undertaking or group of undertakings under section
154 and—

(a) the CMA considers that any undertaking concerned has been
breached and has given notice of that fact to the person
30responsible for giving the undertaking; or

(b) the person responsible for giving any undertaking concerned
supplied, 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
35subsection (6), in the definition of “relevant decision”—

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

“(i) to 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
40the matter concerned;

(ia) as to whether to accept undertakings under
section 154 instead of making any reference
under section 131;”, 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 (1), after paragraph (a) insert—

“(aa) any decision not to make a reference under section 131
following a consultation in relation to the matter concerned
5under section 169;”.

(3) In subsection (2)—

(a) 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
10prepared and published;

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

(b) after paragraph (b) insert—

“(ba) 15any extension by it under section 144 of the period
within which a report under section 142 is to be
prepared and action is to be taken in relation to it;”.

(4) After subsection (7) insert—

“(7A) Subsection (6) shall not apply in relation to any case falling within
20subsection (1)(a).”

15 In section 179 (review of decisions under Part 4), in subsection (2), before
paragraph (a) insert—

“(za) does not include a decision whether to carry out functions
under section 5 in a case where the CMA is, or would have
25been, required to publish a market study notice (see section
130A(1));”.

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

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

(3) 30In subsection (4), for “137(3)” substitute “131C(1), 137(3), 138B(6)”.

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

Section 35

35SCHEDULE 13 Extension of powers to issue warrants under the 1998 Act to CAT

1 The 1998 Act is amended as follows.

2 (1) Section 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) In subsection (3), for “the judge” substitute “the court or (as the case may be)
5the 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
rules of court;

(b) 10in 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) In subsection (1), for the words before paragraph (a) substitute “On an
15application 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) 20An 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.”

4 25In section 61 (interpretation of Part 2), after the definition of “the Treaty”
insert—

• ““the Tribunal” means the Competition Appeal Tribunal;”

• “Tribunal rules” means rules under section 15 of the Enterprise
  Act 2002.””.

5 (1) 30Section 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) 35After 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
40with 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
issue a warrant if it is satisfied that—”.

(3) After subsection (10) insert—

“(10A) 5An 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
with Tribunal rules.”

7 (1) 10Section 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
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.”

8 In section 65C (interpretation of Part 2A), in subsection (2), after the entry for
“the Treaty” (but before the “and” following it) insert—

• ““the Tribunal;”

• “Tribunal rules;””.

9 (1) 25Section 65G (power to enter business 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
application made to it by the CMA, the court or the Tribunal may issue a
warrant if it is satisfied that—”.

(3) 30In subsection (3), for “the judge” substitute “the court or (as the case may be)
the 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
35rules of court;

(b) in 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) 40In 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) 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) 5in the case of an application to the Tribunal, in accordance
with Tribunal rules.”

Section 45(5)

SCHEDULE 14 Regulators: use of powers under the 1998 Act

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

1 10The Gas Act 1986 is amended as follows.

2 (1) Section 28 (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”.

(3) After subsection (4) insert—

“(4A) 15Before 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
provisional order if it considers that it would be more appropriate to
20proceed 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
“decides that it would be more appropriate to proceed under the
25Competition 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
subsection (1), the Authority shall consider whether it would be
30more 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.”

Electricity Act 1989 (c. 29)Electricity Act 1989 (c. 29)

4 35The 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”.

(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 (d) 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”.

6 In section 27A (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.”

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
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 25The 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—

“(1A) Before making an enforcement order or confirming a provisional
enforcement order, the Authority shall consider whether it would be
30more 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
appropriate to proceed under the Competition Act 1998.”

(3) In subsection (3)—

(a) 35in 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

(b) in paragraph (a), after “satisfied” insert “or has so decided”.

10 In section 22A (penalties), for subsection (13) substitute—

“(13) 40Before imposing a penalty under this section, the Authority shall
consider whether it would be more appropriate to proceed under the
Competition 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 5The 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
10be 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)”.

13 15In section 57A (penalties), for subsection (6) substitute—

“(6) Before imposing a penalty under this section, the Office of Rail
Regulation shall consider whether it would be more appropriate to
proceed under the Competition Act 1998.

(7) The Office of Rail Regulation shall not impose a penalty under this
20section 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)
25above 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) In subsection (1), omit paragraph (b) and the “or” preceding it.

(3) 30After 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
35provisional 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 In 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) 5OFCOM 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
10statement 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) 15Before giving a notification under this section, OFCOM must
consider whether it would be more appropriate to proceed under the
Competition Act 1998.

(6) OFCOM must not give a notification under this section if they
consider that it would be more appropriate to proceed under the
20Competition 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
statement to that effect in such manner as they consider appropriate
for bringing their decision to the attention of persons whom they
25consider are likely to be affected by it.”

Postal Services Act 2011 (c. 5)2011 (c. 5)

19 In 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
30consider 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
consider that it would be more appropriate to proceed under the
Competition Act 1998.

(3) 35In 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 for bringing their decision to the attention of persons
whom they consider are likely to be affected by it.”

40Health and Social Care Act 2012 (c. 7)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—

“(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) 5Monitor must not impose a discretionary requirement on such a
person 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
10mentioned in subsection (1)(b), Monitor must consider whether it
would 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
15under the Competition Act 1998.”

The 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
question arises as to whether paragraph (2) or (3) applies to any particular
20case”.

The Energy (Northern Ireland) Order 2003 (S.I. 2003/419 (N.I. 6)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.

(2) In paragraph (1), for “, (5) and” substitute “and (5) to”.

(3) 25In 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
order in relation to a licence holder, the Authority shall consider
30whether 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
it would be more appropriate to proceed under the Competition
35Act 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
Act 1998”, and

(b) 40in sub-paragraph (a), after “satisfied” insert “or has so decided”.