Enterprise and Regulatory Reform Bill

Session 2012 - 13
Internet Publications
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
15
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—
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
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).”