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 12 — Markets: time-limits
221

131B
Market studies and the making of decisions to refer: time-limits
(1)
Where the CMA has published a market study notice in a case to
which section 131A applies, the CMA shall, within the period of 6
months beginning with the date on which it publishes the notice—
(a)
publish the notice under section 131A(2)(a); and
5
(b)
begin the process of consultation under section 131A(2)(b)
(but the CMA need not complete the process within that
period).
(2)
Subsection (3) applies where—
(a)
the CMA has published a market study notice;
10
(b)
no representation has been made to the CMA within the
period specified in the notice under section 130A(3)(b) to the
effect that a reference under section 131 should be made in
relation to the matter specified in the notice; and
(c)
the CMA has decided not to make such a reference.
15
(3)
The CMA shall, within the period of 6 months beginning with the
date on which it publishes the market study notice, publish notice of
the decision not to make a reference.
(4)
Where the CMA has published a market study notice it shall, within
the period of 12 months beginning with the date on which it
20
publishes the notice, prepare and publish a report (referred to in this
Part as a “market study report”) which sets out—
(a)
the findings of the CMA in relation to the matter specified in
the notice; and
(b)
the action (if any) which the CMA proposes to take in relation
25
to the matter.
(5)
In a case to which section 131A applies, the market study report
shall, in particular, contain—
(a)
the decision of the CMA to make a reference under section
131 in relation to the matter specified in the market study
30
notice, the decision to accept an undertaking under section
154 instead of making such a reference or (as the case may be)
the decision otherwise not to make such a reference;
(b)
the CMA’s reasons for the decision; and
(c)
such information as the CMA considers appropriate for
35
facilitating a proper understanding of its reasons for the
decision.
(6)
Where a market study report contains a decision of the CMA to make
a reference under section 131 in relation to a matter, the CMA shall,
at the same time as it publishes the report, make the reference.
40
(7)
This section is subject to section 140A (duty of Secretary of State to
refer in public interest intervention cases).
131C
Time-limits under section 131B: supplementary
(1)
The Secretary of State may by order amend section 131B so as to alter
one or more of the following periods—
45

Enterprise and Regulatory Reform Bill
Schedule 12 — Markets: time-limits
222

(a)
the period of 6 months mentioned in subsection (1) or (3) or
any period for the time being mentioned in either of those
subsections in substitution for that period;
(b)
the period of 12 months mentioned in subsection (4) or any
period for the time being there mentioned in substitution for
5
that period.
(2)
But no alteration may be made by virtue of subsection (1) which
results in—
(a)
the period for the time being mentioned in subsection (1) or
(3) exceeding 6 months; or
10
(b)
the period for the time being mentioned in subsection (4)
exceeding 12 months.
(3)
Before making an order under this section the Secretary of State shall
consult the CMA and such other persons as the Secretary of State
considers appropriate.”
15
Market investigations and reports
3     (1)
Section 137 of the 2002 Act (time-limits for market investigations and
reports) is amended as follows.
      (2)
In subsection (1), for “two years” substitute “18 months”.
      (3)
After subsection (2) insert—
20
“(2A)
The CMA may extend, by no more than 6 months, the period within
which its report under section 136 is to be prepared and published if
it considers that there are special reasons for doing so.
(2B)
An extension under subsection (2A) shall come into force when
published under section 172.
25
(2C)
No more than one extension is possible under subsection (2A).”
      (4)
For subsection (3) substitute—
“(3)
The Secretary of State may by order amend this section so as to alter
one or more of the following periods—
(a)
the period of 18 months mentioned in subsection (1) or any
30
period for the time being there mentioned in substitution for
that period;
(b)
the period of 6 months mentioned in subsection (2A) or any
period for the time being there mentioned in substitution for
that period.”
35
      (5)
For subsection (4) substitute—
“(4)
But no alteration shall be made by virtue of subsection (3) which
results in—
(a)
the period for the time being mentioned in subsection (1)
exceeding 18 months; or
40
(b)
the period for the time being mentioned in subsection (2A)
exceeding 6 months.”

Enterprise and Regulatory Reform Bill
Schedule 12 — Markets: time-limits
223

Remedies implementation
4
In section 138 of the 2002 Act (duty to remedy adverse effects), in subsection
(2), after “shall,” insert “within the period permitted by section 138A,”.
5
After section 138 of that Act insert—
“138A
Time-limits for discharging duty under section 138
5
(1)
The CMA shall discharge its duty under section 138(2) within the
period of 6 months beginning with the date on which it publishes the
report concerned under section 136.
(2)
The CMA may extend, by no more than 4 months, the period within
which its duty under section 138(2) is required to be discharged if it
10
considers that there are special reasons for doing so.
(3)
The CMA may extend the period within which its duty under section
138(2) is required to be discharged if it considers that—
(a)
a person has failed (whether with or without reasonable
excuse) to comply with any requirement of a notice under
15
section 174 which was given in relation to the reference; and
(b)
the failure is preventing the CMA from properly discharging
its duty under section 138(2).
(4)
An extension under subsection (2) or (3) shall come into force when
published under section 172.
20
(5)
An extension under subsection (3) continues in force until—
(a)
the person concerned provides the information or documents
to the satisfaction of the CMA or (as the case may be) appears
as a witness in accordance with the requirements of the CMA;
or
25
(b)
the CMA publishes its decision to cancel the extension.
138B
Section 138A: supplementary
(1)
A 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).
30
(2)
No more than one extension is possible under section 138A(2).
(3)
Where a period is extended or further extended under section
138A(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
35
extension (whether or not those periods overlap in time).
(4)
Subsection (5) applies where—
(a)
the 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
40
made under section 138A(3); and
(c)
the same days or fractions of days are included in or comprise
the further extension and are included in or comprise at least
one such previous extension.

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Schedule 12 — Markets: time-limits
224

(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
one or more of the following periods—
5
(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
period for the time being there mentioned in substitution for
10
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)
exceeding 6 months; or
15
(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
State considers appropriate.”
20
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)
After subsection (1A) (inserted by Schedule 10) insert—
25
“(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
doing so.
30
(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)
after “amend” insert “—
35
(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
mentioned in that subsection or any period for the
40
time being mentioned in that subsection in
substitution for that period.”
      (5)
In subsection (3)—
(a)
after “results in” insert “—
(a)
”,
45

Enterprise and Regulatory Reform Bill
Schedule 12 — Markets: time-limits
225

(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.”
Time-limits: consequential and other minor amendments
5
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)
In subsection (1)—
10
(a)
after “services” insert “—
(a)
”, and
(b)
at the end insert “; and
(b)
in a case in which the CMA has published a market
study notice under section 130A, the period
15
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
market study notice in relation to the matter concerned”.
20
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
prevent the making of a market investigation reference if the CMA
25
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
responsible for giving the undertaking; or
30
(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
subsection (6), in the definition of “relevant decision”—
35
(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
the matter concerned;
40
(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”.

Enterprise and Regulatory Reform Bill
Schedule 13 — Extension of powers to issue warrants under the 1998 Act to CAT
226

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
under section 169;”.
5
      (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
prepared and published;
10
(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)
any extension by it under section 144 of the period
15
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
subsection (1)(a).”
20
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
been, required to publish a market study notice (see section
25
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)
In subsection (4), for “137(3)” substitute “131C(1), 137(3), 138B(6)”.
30
17
In section 184 (index of defined expressions in Part 4), after the entry in the
table for “market investigation reference” insert—

“Market study notice
Section 130A(1)

“Market study report
Section 131B(4)”.

Schedule 13
35
Section 35

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.

Enterprise and Regulatory Reform Bill
Schedule 13 — Extension of powers to issue warrants under the 1998 Act to CAT
227

      (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)
the Tribunal”.
5
      (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)
in the case of an application to the Tribunal, in accordance
10
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
application made to it by the CMA, the court or the Tribunal may issue a
15
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—
20
(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
In section 61 (interpretation of Part 2), after the definition of “the Treaty”
25
insert—
““the Tribunal” means the Competition Appeal Tribunal;”
“Tribunal rules” means rules under section 15 of the Enterprise
Act 2002.””.
5     (1)
Section 62 (power to enter business premises under a warrant: Article 20
30
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 (8) insert—
35
“(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
with Tribunal rules.”
40
6     (1)
Section 62A (power to enter non-business premises under a warrant: Article
21 inspections) is amended as follows.