Session 2012 - 13
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Other Bills before Parliament

Enterprise and Regulatory Reform Bill


Enterprise and Regulatory Reform Bill
Schedule 10 — Markets: public interest interventions

223

 

(e)   

in sub-paragraph (iv), omit “(disregarding the fact that the notice

was given)”,

(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

was given)”,

(h)   

after sub-paragraph (vi) insert—

“(via)   

the Secretary of State has made no finding at

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all under section 146A(2) and the reference is

finally determined under paragraph (a)

above;”,

(i)   

omit the “or” after sub-paragraph (vii),

(j)   

after sub-paragraph (vii) insert—

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“(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

161.”

      (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

Section 146A(3)”.

 

      (3)  

After the entry in the table for “Final determination of market investigation

reference” insert—

 

“Full PI reference

Section 140A(12)”.

 

40

      (4)  

After the entry in the table for “Public interest consideration being finalised”

 
 

Enterprise and Regulatory Reform Bill
Schedule 11 — Markets: investigation powers

224

 

insert—

 

“Public interest expert

Section 141B(4)”.

 

      (5)  

Before the entry in the table for “subordinate legislation” insert—

 

“Restricted PI reference

Section 140A(12)”.

 

Schedule 11

5

Section 36(8)

 

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

same failure.

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

maximum;

(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

 
 

Enterprise and Regulatory Reform Bill
Schedule 11 — Markets: investigation powers

225

 

the time the failure or (as the case may be) the obstruction or delay

concerned occurred.

(9)   

In this section—

(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

section.

(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

 
 

Enterprise and Regulatory Reform Bill
Schedule 11 — Markets: investigation powers

226

 

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

Secretary of State;

(b)   

in a case falling within subsection (1)(b), the expiry of the

period concerned.

(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

making such a reference;

(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

reference;

(b)   

in a case falling within subsection (3)(b), the acceptance of the

undertaking concerned;

35

(c)   

in a case falling within subsection (3)(c), the publication of the

notice concerned;

(d)   

in a case falling within subsection (3)(d), the expiry of the

period concerned.

(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

(4)(b).”

 
 

 
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Revised 19 March 2013