|
| |
|
35 | Extension of powers to issue warrants to CAT |
| |
Schedule 13 (which amends the 1998 Act to extend the powers under that Act |
| |
to issue warrants to the Competition Appeal Tribunal) has effect. |
| |
36 | Part 1 of the 1998 Act: procedural matters |
| |
(1) | Part 1 of the 1998 Act (competition) is amended as follows. |
| 5 |
(2) | After section 25 (power to investigate) insert— |
| |
“25A | Power of CMA to publish notice of investigation |
| |
(1) | Where the CMA decides to conduct an investigation it may publish a |
| |
notice which may, in particular— |
| |
(a) | state its decision to do so; |
| 10 |
(b) | indicate which of subsections (2) to (7) of section 25 the |
| |
investigation falls under; |
| |
(c) | summarise the matter being investigated; |
| |
(d) | identify any undertaking whose activities are being |
| |
investigated as part of the investigation; |
| 15 |
(e) | identify the market which is or was affected by the matter being |
| |
| |
(2) | Section 57 does not apply to a notice under subsection (1) to the extent |
| |
that it includes information other than information mentioned in that |
| |
| 20 |
(3) | Subsection (4) applies if— |
| |
(a) | the CMA has published a notice under subsection (1) which |
| |
identifies an undertaking whose activities are being |
| |
| |
(b) | the CMA subsequently decides (without making a decision |
| 25 |
within the meaning given by section 31(2)) to terminate the |
| |
investigation of the activities of the undertaking so identified. |
| |
(4) | The CMA must publish a notice stating that the activities of the |
| |
undertaking in question are no longer being investigated.” |
| |
(3) | Schedule 9 (examples of provision that may be made in rules) is amended as |
| 30 |
| |
(4) | After paragraph 1 insert— |
| |
| |
1A (1) | Rules may provide for the exercise of a function of the CMA under |
| |
| 35 |
(a) | by one or more members of the CMA Board (see Part 2 of |
| |
Schedule 4 to the Enterprise and Regulatory Reform Act |
| |
| |
(b) | by one or more members of the CMA panel (see Part 3 of that |
| |
| 40 |
(c) | by one or more members of staff of the CMA; |
| |
(d) | jointly by one or more of the persons mentioned in paragraph |
| |
| |
|
| |
|
| |
|
(2) | Sub-paragraph (1) does not apply in relation to any function |
| |
prescribed in regulations made under section 7(1) of the Civil |
| |
Aviation Act 1982 (power for Secretary of State to prescribe certain |
| |
functions of the Civil Aviation Authority which must not be |
| |
performed on its behalf by any other person).” |
| 5 |
(5) | After paragraph 13 insert— |
| |
“Oral hearings: procedure |
| |
13A (1) | Rules may make provision as to the procedure to be followed by the |
| |
CMA in holding oral hearings as part of an investigation. |
| |
(2) | Rules may, in particular, make provision as to the appointment of a |
| 10 |
person mentioned in sub-paragraph (3) who has not been involved |
| |
in the investigation in question to— |
| |
(a) | chair an oral hearing, and |
| |
(b) | prepare a report following the hearing and give it to the |
| |
person who is to exercise on behalf of the CMA its function of |
| 15 |
making a decision (within the meaning given by section |
| |
31(2)) as a result of the investigation. |
| |
| |
(a) | a member of the CMA Board; |
| |
(b) | a member of the CMA panel; |
| 20 |
(c) | a member of staff of the CMA. |
| |
| |
(a) | contain an assessment of the fairness of the procedure |
| |
followed in holding the oral hearing, and |
| |
(b) | identify any other concerns about the fairness of the |
| 25 |
procedure followed in the investigation which have been |
| |
brought to the attention of the person preparing the report.” |
| |
(6) | After paragraph 13A insert— |
| |
| |
13B (1) | Rules may make provision as to arrangements to be made by the |
| 30 |
CMA for dealing with complaints about the conduct by the CMA of |
| |
| |
(2) | Rules may, in particular, make provision as to— |
| |
(a) | the appointment of a person mentioned in sub-paragraph (3) |
| |
who has not been involved in the investigation in question to |
| 35 |
consider any such complaint; |
| |
(b) | the time-table for the consideration of any such complaint. |
| |
| |
(a) | a member of the CMA Board; |
| |
(b) | a member of the CMA panel; |
| 40 |
(c) | a member of staff of the CMA.” |
| |
|
| |
|
| |
|
(7) | After paragraph 13B insert— |
| |
| |
13C | Rules may make provision as to the procedure to be followed in a |
| |
case where, during an investigation, one or more persons notify the |
| |
CMA that they accept that there has been an infringement of a kind |
| 5 |
to which the investigation relates.” |
| |
Interim measures and other sanctions |
| |
37 | Threshold for interim measures |
| |
In section 35 of the 1998 Act (interim measures), in subsection (2)(a), for |
| |
“serious, irreparable damage” substitute “significant damage”. |
| 10 |
38 | Penalties: guidance etc. |
| |
(1) | Part 1 of the 1998 Act (competition) is amended as follows. |
| |
(2) | In section 36 (penalties), after subsection (7) insert— |
| |
“(7A) | In fixing a penalty under this section the CMA must have regard to— |
| |
(a) | the seriousness of the infringement concerned, and |
| 15 |
(b) | the desirability of deterring both the undertaking on whom the |
| |
penalty is imposed and others from— |
| |
(i) | entering into agreements which infringe the Chapter 1 |
| |
prohibition or the prohibition in Article 81(1), or |
| |
(ii) | engaging in conduct which infringes the Chapter 2 |
| 20 |
prohibition or the prohibition in Article 82.” |
| |
(3) | In section 38 (guidance on level of penalties), in subsection (8), before “must |
| |
have regard” insert “and the Tribunal”. |
| |
| |
39 | Power for Secretary of State to impose time-limits on investigations etc. |
| 25 |
After section 31E of the 1998 Act insert— |
| |
“31F | Power for Secretary of State to impose time-limits on investigations |
| |
| |
(1) | The Secretary of State may by order impose time-limits in relation to— |
| |
(a) | the conduct by the CMA of investigations or investigations of a |
| 30 |
description specified in the order; |
| |
(b) | the making by the CMA of decisions (within the meaning given |
| |
by section 31(2)) as a result of investigations or investigations of |
| |
| |
(2) | Before making an order under subsection (1), the Secretary of State |
| 35 |
must consult the CMA and such other persons as the Secretary of State |
| |
| |
|
| |
|
| |
|
40 | Review of operation of Part 1 of 1998 Act |
| |
(1) | The Secretary of State must— |
| |
(a) | review the operation of Part 1 of the 1998 Act, and |
| |
(b) | prepare and publish a report on the outcome of the review. |
| |
(2) | The report must be published before the end of the period of 5 years beginning |
| 5 |
with the day on which Part 1 of Schedule 5 (which transfers the functions of the |
| |
Office of Fair Trading under Part 1 of the 1998 Act to the Competition and |
| |
Markets Authority) comes into force. |
| |
(3) | The Secretary of State must lay the report before Parliament. |
| |
| 10 |
| |
| |
(1) | Section 188 of the 2002 Act (cartel offence) is amended as follows. |
| |
(2) | In subsection (1), omit “dishonestly”. |
| |
| 15 |
(4) | After subsection (7) insert— |
| |
“(8) | This section is subject to section 188A.” |
| |
(5) | After that section insert— |
| |
“188A | Circumstances in which cartel offence not committed |
| |
(1) | An individual does not commit an offence under section 188(1) if, |
| 20 |
| |
(a) | in a case where the arrangements would (operating as the |
| |
parties intend) affect the supply in the United Kingdom of a |
| |
product or service, customers would be given relevant |
| |
information about the arrangements before they enter into |
| 25 |
agreements for the supply to them of the product or service so |
| |
| |
(b) | in the case of bid-rigging arrangements, the person requesting |
| |
bids would be given relevant information about them at or |
| |
before the time when a bid is made, or |
| 30 |
(c) | in any case, relevant information about the arrangements |
| |
would be published, before the arrangements are implemented, |
| |
in the manner specified at the time of the making of the |
| |
agreement in an order made by the Secretary of State. |
| |
(2) | In subsection (1), “relevant information” means— |
| 35 |
(a) | the names of the undertakings to which the arrangements |
| |
| |
(b) | a description of the nature of the arrangements which is |
| |
sufficient to show why they are or might be arrangements of the |
| |
kind to which section 188(1) applies, |
| 40 |
(c) | the products or services to which they relate, and |
| |
|
| |
|
| |
|
(d) | such other information as may be specified in an order made by |
| |
| |
(3) | An individual does not commit an offence under section 188(1) if the |
| |
agreement is made in order to comply with a legal requirement. |
| |
(4) | In subsection (3), “legal requirement” has the same meaning as in |
| 5 |
paragraph 5 of Schedule 3 to the Competition Act 1998. |
| |
(5) | A power to make an order under this section— |
| |
(a) | is exercisable by statutory instrument, |
| |
(b) | may be exercised so as to make different provision for different |
| |
cases or different purposes, and |
| 10 |
(c) | includes power to make such incidental, supplementary, |
| |
consequential, transitory, transitional or saving provision as the |
| |
Secretary of State considers appropriate. |
| |
(6) | A statutory instrument containing an order under this section is subject |
| |
to annulment in pursuance of a resolution of either House of |
| 15 |
| |
(6) | After section 188A (as inserted by subsection (5) above) insert— |
| |
“188B | Defences to commission of cartel offence |
| |
(1) | In a case where the arrangements would (operating as the parties |
| |
intend) affect the supply in the United Kingdom of a product or service, |
| 20 |
it is a defence for an individual charged with an offence under section |
| |
188(1) to show that, at the time of the making of the agreement, he or |
| |
she did not intend that the nature of the arrangements would be |
| |
concealed from customers at all times before they enter into agreements |
| |
for the supply to them of the product or service. |
| 25 |
(2) | It is a defence for an individual charged with an offence under section |
| |
188(1) to show that, at the time of the making of the agreement, he or |
| |
she did not intend that the nature of the arrangements would be |
| |
| |
(3) | It is a defence for an individual charged with an offence under section |
| 30 |
188(1) to show that, before the making of the agreement, he or she took |
| |
reasonable steps to ensure that the nature of the arrangements would |
| |
be disclosed to professional legal advisers for the purposes of obtaining |
| |
advice about them before their making or (as the case may be) their |
| |
| 35 |
(7) | After section 190 of the 2002 Act insert— |
| |
“190A | Cartel offence: prosecution guidance |
| |
(1) | The CMA must prepare and publish guidance on the principles to be |
| |
applied in determining, in any case, whether proceedings for an offence |
| |
under section 188(1) should be instituted. |
| 40 |
(2) | The CMA may at any time issue revised or new guidance. |
| |
(3) | Guidance published by the CMA under this section is to be published |
| |
in such manner as it considers appropriate. |
| |
(4) | In preparing guidance under this section the CMA must consult— |
| |
|
| |
|
| |
|
(a) | the Director of the Serious Fraud Office; |
| |
(b) | the Lord Advocate; and |
| |
(c) | such other persons as it considers appropriate.” |
| |
(8) | The amendments made by subsections (1) to (6) apply only in relation to |
| |
agreements falling within section 188(1) of the 2002 Act which— |
| 5 |
(a) | are made after the commencement of this section, and |
| |
(b) | relate to arrangements made or to be made after that commencement. |
| |
42 | Extension of power to issue warrants to CAT |
| |
(1) | Section 194 of the 2002 Act (power to enter premises under a warrant) is |
| |
| 10 |
(2) | In subsection (1), for the words from the beginning to “if he is satisfied” |
| |
substitute “On an application made to it by the CMA or, in Scotland, the |
| |
procurator fiscal, the appropriate body may issue a warrant if it is satisfied”. |
| |
(3) | After subsection (1) insert— |
| |
“(1A) | In subsection (1), “appropriate body” means— |
| 15 |
(a) | in England and Wales and Northern Ireland, the High Court or |
| |
the Competition Appeal Tribunal; |
| |
(b) | in Scotland, the sheriff.” |
| |
(4) | After subsection (4) insert— |
| |
“(4A) | An application for a warrant under this section must be made— |
| 20 |
(a) | in the case of an application to the High Court or the sheriff, in |
| |
accordance with rules of court; |
| |
(b) | in the case of an application to the Competition Appeal |
| |
Tribunal, in accordance with rules made under section 15.” |
| |
(5) | In Schedule 4 to that Act, before paragraph 11, but after the cross-heading |
| 25 |
immediately preceding it, insert— |
| |
“10A (1) | Tribunal rules may make provision as to proceedings on an |
| |
application for a warrant under section 194 of this Act or section 28, |
| |
28A, 62, 62A, 63, 65G or 65H of the 1998 Act, including provision— |
| |
(a) | for the Tribunal dealing with the proceedings to consist only |
| 30 |
of the President or a member of the panel of chairmen; |
| |
(b) | as to the manner in which the proceedings are to be |
| |
conducted, including provision— |
| |
(i) | for such applications to be determined without a |
| |
| 35 |
(ii) | in cases where there is a hearing, for it to be held in |
| |
private if the Tribunal considers it appropriate |
| |
because it is considering information of a kind |
| |
mentioned in paragraph 1(2); |
| |
(c) | as to the persons entitled to be heard in such proceedings |
| 40 |
(where there is a hearing); |
| |
(d) | for requiring persons to attend to give evidence and produce |
| |
documents, and for authorising the administration of oaths |
| |
| |
|
| |
|
| |
|
(e) | as to the evidence which may be required or admitted and the |
| |
extent to which it should be oral or written; |
| |
(f) | allowing the Tribunal to fix time-limits with respect to any |
| |
aspect of the proceedings and to extend any time-limit |
| |
(before or after its expiry). |
| 5 |
(2) | Paragraphs 2 to 8, and 11 to 17, of this Schedule do not apply in |
| |
relation to the institution or conduct of proceedings for a warrant |
| |
mentioned in sub-paragraph (1).” |
| |
(6) | In section 14 of that Act (constitution of Tribunal for particular proceedings |
| |
and its decisions), in subsection (5), for “paragraph 18” substitute “paragraphs |
| 10 |
| |
| |
| |
Enforcement orders: markets and mergers |
| |
43 | Enforcement orders: monitoring compliance and determination of disputes |
| 15 |
In Schedule 8 to the 2002 Act (provision that may be contained in certain |
| |
enforcement orders made under Part 3 or 4 of that Act), after paragraph 20B |
| |
| |
“Monitoring of compliance and determination of disputes |
| |
20C (1) | An order may provide for the appointment of one or more than one |
| 20 |
person (referred to in this paragraph as an “appointee”) by the |
| |
relevant authority or by such other persons as may be specified or |
| |
described in the order to— |
| |
(a) | monitor compliance with such terms of the order as are so |
| |
specified or described or terms of any directions given under |
| 25 |
| |
(b) | determine any dispute between persons who are subject to |
| |
the order about what is required by any such terms. |
| |
(2) | An order made by virtue of this paragraph must make provision as |
| |
to the terms of an appointee’s appointment. |
| 30 |
(3) | A determination made by virtue of an order under this paragraph is |
| |
| |
(a) | any person who is subject to the order; |
| |
(b) | the relevant authority; and |
| |
(c) | in the case where the relevant authority is the Secretary of |
| 35 |
| |
44 | Enforcement orders: provision of information |
| |
(1) | Schedule 8 to the 2002 Act (provision that may be contained in certain |
| |
enforcement orders made under Part 3 or 4 of that Act) is amended as follows. |
| |
(2) | Omit paragraph 15 (publication etc. of price information). |
| 40 |
|
| |
|