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

234

 

(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

235

 

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 41

 

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

236

 

      (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.

 
 

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

237

 

      (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 (10) insert—

“(10A)   

An application for a warrant under this section must be made—

5

(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.”

7     (1)  

Section 63 (power to enter business premises under a warrant: Article 22(2)

10

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—

15

“(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.”

20

8          

In section 65C (interpretation of Part 2A), in subsection (2), after the entry for

“the Treaty” (but before the “and” following it) insert—

““the Tribunal;”

“Tribunal rules;””.

9     (1)  

Section 65G (power to enter business premises under a warrant: Article 22(1)

25

investigations) 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

warrant if it is satisfied that—”.

      (3)  

In subsection (3), for “the judge” substitute “the court or (as the case may be)

30

the Tribunal”.

      (4)  

After subsection (8) insert—

“(8A)   

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;

35

(b)   

in the case of an application to the Tribunal, in accordance

with Tribunal rules.”

10    (1)  

Section 65H (power to enter domestic premises under a warrant: Article

22(1) investigations) is amended as follows.

      (2)  

In subsection (1), for the words before paragraph (a) substitute “On an

40

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”.

 
 

Enterprise and Regulatory Reform Bill
Schedule 14 — Regulators: use of powers under the 1998 Act

238

 

      (4)  

After subsection (8) insert—

“(8A)   

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

5

with Tribunal rules.”

Schedule 14

Section 51(5)

 

Regulators: use of powers under the 1998 Act

Gas Act 1986 (c. 44)

1          

The Gas Act 1986 is amended as follows.

10

2     (1)  

Section 28 (orders for securing compliance) is amended as follows.

      (2)  

In subsections (1), (2) and (4), for “(5) and” (in each place where it occurs)

substitute “(4A) to”.

      (3)  

After subsection (4) insert—

“(4A)   

Before making a final order or making or confirming a provisional

15

order, the Authority shall consider whether it would be more

appropriate to proceed under the Competition Act 1998.

(4B)   

The Authority shall not make a final order or make or confirm a

provisional order if it considers that it would be more appropriate to

proceed under the Competition Act 1998.”

20

      (4)  

In subsection (5), omit paragraph (c) and the “or” preceding it.

      (5)  

In subsection (6)—

(a)   

in the words before paragraph (a), after “the Authority” insert

“decides that it would be more appropriate to proceed under the

Competition Act 1998 or”, and

25

(b)   

in paragraph (a), after “that it” insert “has so decided or”.

3          

In section 30A (penalties), for subsection (2) substitute—

“(2)   

Before imposing a penalty on a regulated person under

subsection (1), the Authority shall consider whether it would be

more appropriate to proceed under the Competition Act 1998.

30

(2A)   

The Authority shall not impose a penalty on a regulated person

under subsection (1) if it considers that it would be more appropriate

to proceed under the Competition Act 1998.”

Electricity Act 1989 (c. 29)

4          

The Electricity Act 1989 is amended as follows.

35

5     (1)  

Section 25 (orders for securing compliance) is amended as follows.

      (2)  

In subsections (1), (2) and (4), for “(5) and” (in each place where it occurs)

substitute “(4A) to”.

 
 

Enterprise and Regulatory Reform Bill
Schedule 14 — Regulators: use of powers under the 1998 Act

239

 

      (3)  

After subsection (4) insert—

“(4A)   

Before making a final order or making or confirming a provisional

order, the Authority shall consider whether it would be more

appropriate to proceed under the Competition Act 1998.

(4B)   

The Authority shall not make a final order or make or confirm a

5

provisional order if it considers that it would be more appropriate to

proceed under the Competition Act 1998.”

      (4)  

In subsection (5), omit paragraph (d) and the “or” preceding it.

      (5)  

In subsection (6)—

(a)   

in the words before paragraph (a), after “the Authority” insert

10

“decides that it would be more appropriate to proceed under the

Competition Act 1998 or”, and

(b)   

in paragraph (a), after “that it” insert “has so decided or”.

6          

In section 27A (penalties), for subsection (2) substitute—

“(2)   

Before imposing a penalty on a regulated person under

15

subsection (1), the Authority shall consider whether it would be

more appropriate to proceed under the Competition Act 1998.

(2A)   

The Authority shall not impose a penalty on a regulated person

under subsection (1) if it considers that it would be more appropriate

to proceed under the Competition Act 1998.”

20

7          

In section 43 (functions with respect to competition), in subsection (6), for the

words from the beginning to “(3) above” substitute “If any question arises as

to whether subsection (2) or (3) above applies to any particular case”.

Water Industry Act 1991 (c. 56)

8          

The Water Industry Act 1991 is amended as follows.

25

9     (1)  

Section 19 (exception to duty to enforce) is amended as follows.

      (2)  

For subsection (1A) substitute—

“(1A)   

Before making an enforcement order or confirming a provisional

enforcement order, the Authority shall consider whether it would be

more appropriate to proceed under the Competition Act 1998.

30

(1B)   

The Authority shall not make an enforcement order or confirm a

provisional enforcement order if it considers that it would be more

appropriate to proceed under the Competition Act 1998.”

      (3)  

In subsection (3)—

(a)   

in the words before paragraph (a), for “is satisfied as mentioned in

35

subsection (1A) above” substitute “has decided that it would be more

appropriate to proceed under the Competition Act 1998”, and

(b)   

in paragraph (a), after “satisfied” insert “or has so decided”.

10         

In section 22A (penalties), for subsection (13) substitute—

“(13)   

Before imposing a penalty under this section, the Authority shall

40

consider whether it would be more appropriate to proceed under the

Competition Act 1998.

 
 

Enterprise and Regulatory Reform Bill
Schedule 14 — Regulators: use of powers under the 1998 Act

240

 

(14)   

The Authority shall not impose a penalty under this section if it

considers that it would be more appropriate to proceed under the

Competition Act 1998.”

Railways Act 1993 (c. 43)

11         

The Railways Act 1993 is amended as follows.

5

12    (1)  

Section 55 (orders for securing compliance) is amended as follows.

      (2)  

For subsection (5A) substitute—

“(5A)   

Before making a final order or making or confirming a provisional

order, the Office of Rail Regulation shall consider whether it would

be more appropriate to proceed under the Competition Act 1998.

10

(5AA)   

The Office of Rail Regulation shall not make a final order or make or

confirm a provisional order if it considers that it would be more

appropriate to proceed under the Competition Act 1998.”

      (3)  

In subsection (5D)(b), for “(5A)” substitute “(5AA)”.

13         

In section 57A (penalties), for subsection (6) substitute—

15

“(6)   

Before imposing a penalty under this section, the Office of Rail

Regulation shall consider whether it would be more appropriate to

proceed under the Competition Act 1998.

(7)   

The Office of Rail Regulation shall not impose a penalty under this

section if it considers that it would be more appropriate to proceed

20

under the Competition Act 1998.”

14         

In section 67 (functions of the Office of Rail Regulation with respect to

competition), in subsection (8), for the words from the beginning to “(3)

above” substitute “If any question arises as to whether subsection (2) or (3)

above applies to any particular case”.

25

Transport Act 2000 (c. 38)

15    (1)  

Section 21 of the Transport Act 2000 (exceptions to duties to secure

compliance) is amended as follows.

      (2)  

In subsection (1), omit paragraph (b) and the “or” preceding it.

      (3)  

After subsection (5) insert—

30

“(6)   

Before making a final order or making or confirming a provisional

order, the CAA must consider whether it would be more appropriate

to proceed under the Competition Act 1998.

(7)   

The CAA must not make a final order or make or confirm a

provisional order to the extent that it considers that it would be more

35

appropriate to proceed under the Competition Act 1998.”

Communications Act 2003 (c. 21)

16         

The Communications Act 2003 is amended as follows.

17         

In section 94 (notification of contravention of SMP apparatus conditions), for

 
 

 
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