|
| |
|
(e) | in sub-paragraph (iv), omit “(disregarding the fact that the notice |
| |
| |
(f) | for sub-paragraph (v) substitute— |
| |
“(v) | the Secretary of State has failed to make and |
| |
publish a decision under subsection (2) of |
| 5 |
section 146 within the period permitted by |
| |
subsection (3) of that section or (as the case |
| |
may be) under subsection (2) of section 146A |
| |
within the period permitted by subsection (6) |
| |
of that section and the reference is finally |
| 10 |
determined under paragraph (a) above;”, |
| |
(g) | in sub-paragraph (vi), omit “(disregarding the fact that the notice |
| |
| |
(h) | after sub-paragraph (vi) insert— |
| |
“(via) | the Secretary of State has made no finding at |
| 15 |
all under section 146A(2) and the reference is |
| |
finally determined under paragraph (a) |
| |
| |
(i) | omit the “or” after sub-paragraph (vii), |
| |
(j) | after sub-paragraph (vii) insert— |
| 20 |
“(viia) | the Secretary of State has made an adverse |
| |
public interest finding under section 146A(2) |
| |
but has decided under section 147A(2) neither |
| |
to accept an undertaking under section 159 |
| |
nor to make an order under section 161;”, and |
| 25 |
(k) | after sub-paragraph (viii) insert “; or— |
| |
“(ix) | the Secretary of State has made an adverse |
| |
public interest finding under section 146A(2) |
| |
and has accepted an undertaking under |
| |
section 159 or made an order under section |
| 30 |
| |
(4) | In subsection (4)(c), after “(b)(viii)” insert “or (ix)”. |
| |
(5) | In subsection (5), for “or (vi)” substitute “, (vi) or (via)”. |
| |
(6) | In subsection (6), after “(b)(viii)” insert “and (ix)”. |
| |
33 (1) | Section 184 (index of defined expressions in Part 4) is amended as follows. |
| 35 |
(2) | After the entry in the table for “Adverse effect on competition” insert— |
| |
| “Adverse public interest finding |
| | | |
|
(3) | After the entry in the table for “Final determination of market investigation |
| |
| |
|
(4) | After the entry in the table for “Public interest consideration being finalised” |
| |
|
| |
|
| |
|
| |
|
(5) | Before the entry in the table for “subordinate legislation” insert— |
| |
|
| 5 |
| |
Markets: investigation powers |
| |
Enforcement of investigation powers |
| |
1 | After section 174 of the 2002 Act insert— |
| |
“174A | Enforcement of powers under section 174: general |
| |
(1) | Where the CMA considers that a person has, without reasonable |
| 10 |
excuse, failed to comply with any requirement of a notice under |
| |
section 174, it may impose a penalty in accordance with section 174D. |
| |
(2) | The CMA may proceed (whether at the same time or at different |
| |
times) under subsection (1) and section 138A(3) in relation to the |
| |
| 15 |
(3) | Where the CMA considers that a person has intentionally obstructed |
| |
or delayed another person in the exercise of its powers under section |
| |
174(7), it may impose a penalty in accordance with section 174D. |
| |
(4) | A person commits an offence if the person intentionally alters, |
| |
suppresses or destroys any document which the person has been |
| 20 |
required to produce by a notice under section 174. |
| |
(5) | But a person does not commit an offence under subsection (4) in |
| |
relation to any act which constitutes a failure to comply with a notice |
| |
under section 174 if the CMA has proceeded against the person |
| |
under subsection (1) in relation to that failure. |
| 25 |
(6) | A person who commits an offence under subsection (4) is liable— |
| |
(a) | on summary conviction, to a fine not exceeding the statutory |
| |
| |
(b) | on conviction on indictment, to imprisonment for a term not |
| |
exceeding 2 years or to a fine or to both. |
| 30 |
(7) | The CMA shall not proceed against a person under subsection (1) in |
| |
relation to an act which constitutes an offence under subsection (4) if |
| |
that person has been found guilty of that offence. |
| |
(8) | In deciding whether and, if so, how to proceed under subsection (1) |
| |
or (3) or section 138A(3), the CMA shall have regard to the statement |
| 35 |
of policy which was most recently published under section 174E at |
| |
|
| |
|
| |
|
the time the failure or (as the case may be) the obstruction or delay |
| |
| |
| |
(a) | the reference to the production of a document includes a |
| |
reference to the production of a legible and intelligible copy |
| 5 |
of information recorded otherwise than in legible form; and |
| |
(b) | the reference to suppressing a document includes a reference |
| |
to destroying the means of reproducing information |
| |
recorded otherwise than in legible form. |
| |
174B | Restriction on powers to impose penalties under section 174A |
| 10 |
(1) | No penalty shall be imposed by virtue of section 174A(1) or (3) if |
| |
more than 4 weeks have passed since the day which is the relevant |
| |
day in the case in question; but this subsection shall not apply in |
| |
relation to any variation or substitution of the penalty which is |
| |
permitted by virtue of this Part. |
| 15 |
(2) | In the following provisions of this section, “the section 174 power” |
| |
means the power under section 174 to which the failure or (as the |
| |
case may be) the obstruction or delay in question relates. |
| |
(3) | Where the section 174 power is exercised for the purpose mentioned |
| |
in section 174(1)(a), the relevant day is the day when the CMA finally |
| 20 |
concludes the carrying out of its section 5 functions. |
| |
(4) | Where the section 174 power is exercised in connection with an |
| |
enforcement function (within the meaning of that section), the |
| |
relevant day is the day when the enforcement undertaking |
| |
concerned is superseded or released or (as the case may be) the |
| 25 |
enforcement order concerned is revoked. |
| |
(5) | Except where subsection (3) or (4) applies, the relevant day is the day |
| |
determined in accordance with the following provisions of this |
| |
| |
(6) | Where the section 174 power is exercised for the purpose mentioned |
| 30 |
in section 174(1)(b) in connection with a matter that is the subject of |
| |
a possible reference under section 131, the relevant day is the day |
| |
when the CMA finally decides whether to make the reference. |
| |
(7) | Where the section 174 power is exercised for the purpose mentioned |
| |
in section 174(1)(b) in connection with a matter that is the subject of |
| 35 |
a reference under section 131 or 132, the relevant day is the day when |
| |
the reference is finally determined (see section 183). |
| |
(8) | Where the section 174 power is exercised for the purpose mentioned |
| |
in section 174(1)(c) in connection with a matter that is the subject of a |
| |
possible reference under section 140A(5) or (6), the relevant day is |
| 40 |
the day when the Secretary of State makes the reference. |
| |
(9) | Where the section 174 power is exercised for the purpose mentioned |
| |
in section 174(1)(c) in connection with a matter that is the subject of a |
| |
reference under section 140A(6), the relevant day is the day when the |
| |
reference is finally determined (see section 183). |
| 45 |
|
| |
|
| |
|
174C | Section 174B: supplementary provision |
| |
(1) | For the purpose of section 174B(3), the CMA finally concludes the |
| |
carrying out of its section 5 functions if— |
| |
(a) | the CMA publishes the market study report under section |
| |
131B(4) or (as the case may be) gives it to the Secretary of |
| 5 |
State under section 140A(3)(b); or |
| |
(b) | the period permitted for the preparation by the CMA of the |
| |
market study report and for the report to be published under |
| |
section 131B(4) or (as the case may be) given to the Secretary |
| |
of State under section 140A(3)(b) expires and no such report |
| 10 |
has been so prepared or no such action has been taken. |
| |
(2) | For the purpose of section 174B(3), the time when the CMA finally |
| |
concludes the carrying out of its section 5 functions is— |
| |
(a) | in a case falling within subsection (1)(a), the publication of |
| |
the report or (as the case may be) the giving of it to the |
| 15 |
| |
(b) | in a case falling within subsection (1)(b), the expiry of the |
| |
| |
(3) | For the purpose of section 174B(6), the CMA finally decides whether |
| |
to make a reference under section 131 if— |
| 20 |
(a) | the CMA makes such a reference; |
| |
(b) | the CMA accepts an undertaking under section 154 instead of |
| |
| |
(c) | the CMA publishes notice that it has otherwise decided not to |
| |
make such a reference; or |
| 25 |
(d) | the period permitted for the preparation by the CMA of a |
| |
market study report in relation to the matter and for the |
| |
report to be published under section 131B(4) has expired and |
| |
no such report has been so prepared or published. |
| |
(4) | For the purpose of section 174B(6), the time when the CMA finally |
| 30 |
decides whether to make a reference under section 131 is— |
| |
(a) | in a case falling within subsection (3)(a), the making of the |
| |
| |
(b) | in a case falling within subsection (3)(b), the acceptance of the |
| |
| 35 |
(c) | in a case falling within subsection (3)(c), the publication of the |
| |
| |
(d) | in a case falling within subsection (3)(d), the expiry of the |
| |
| |
(5) | In subsection (4)(b) the reference to the acceptance of the |
| 40 |
undertaking concerned shall, in a case where the CMA has accepted |
| |
a group of undertakings under section 154, be treated as a reference |
| |
to the acceptance of the last undertaking in the group; but |
| |
undertakings which vary, supersede or revoke earlier undertakings |
| |
shall be disregarded for the purposes of subsections (3)(b) and |
| 45 |
| |
|
| |
|