Session 2012 - 13
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Other Bills before Parliament

Enterprise and Regulatory Reform Bill


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

241

 

subsection (10) substitute—

“(10)   

Before giving a notification under this section, OFCOM must

consider whether it would be more appropriate to proceed under the

Competition Act 1998.

(10A)   

OFCOM must not give a notification under this section if they

5

consider that it would be more appropriate to proceed under the

Competition Act 1998.

(10B)   

In a case where OFCOM decide that it would be more appropriate to

proceed under the Competition Act 1998, they must publish a

statement to that effect in such manner as they consider appropriate

10

for bringing their decision to the attention of persons whom they

consider are likely to be affected by it.”

18         

In section 96A (notification of contravention of condition other than SMP

apparatus condition), for subsection (5) substitute—

“(5)   

Before giving a notification under this section, OFCOM must

15

consider whether it would be more appropriate to proceed under the

Competition Act 1998.

(6)   

OFCOM must not give a notification under this section if they

consider that it would be more appropriate to proceed under the

Competition Act 1998.

20

(7)   

In a case where OFCOM decide that it would be more appropriate to

proceed under the Competition Act 1998, they must publish a

statement to that effect in such manner as they consider appropriate

for bringing their decision to the attention of persons whom they

consider are likely to be affected by it.”

25

Postal Services Act 2011 (c. 5)

19         

In Schedule 7 to the Postal Services Act 2011 (enforcement of regulatory

requirements) for paragraph 4 substitute—

“4    (1)  

Before giving a notification under paragraph 2, OFCOM must

consider whether it would be more appropriate to proceed under

30

the Competition Act 1998.

      (2)  

OFCOM must not give a notification under paragraph 2 if they

consider that it would be more appropriate to proceed under the

Competition Act 1998.

      (3)  

In a case where OFCOM decide that it would be more appropriate

35

to proceed under the Competition Act 1998, they must publish a

statement to that effect in such manner as they consider

appropriate for bringing their decision to the attention of persons

whom they consider are likely to be affected by it.”

Health and Social Care Act 2012 (c. 7)

40

20         

The Health and Social Care Act 2012 is amended as follows.

 
 

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

242

 

21         

In section 105 (discretionary requirements), after subsection (3) insert—

“(3A)   

Before imposing a discretionary requirement on a person mentioned

in subsection (1)(b), Monitor must consider whether it would be

more appropriate to proceed under the Competition Act 1998.

(3B)   

Monitor must not impose a discretionary requirement on such a

5

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

under the Competition Act 1998.”

22         

In section 106 (enforcement undertakings), after subsection (3) insert—

“(3A)   

Before accepting an enforcement undertaking from a person

mentioned in subsection (1)(b), Monitor must consider whether it

10

would be more appropriate to proceed under the Competition Act

1998.

(3B)   

Monitor must not accept an enforcement undertaking from such a

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

under the Competition Act 1998.”

15

The Electricity (Northern Ireland) Order 1992 (S.I. 1992/231 (N.I. 1))

23         

In article 46 of the Electricity (Northern Ireland) Order 1992, in paragraph

(6), for the words from the beginning to “(2A) or (3)” substitute “If any

question arises as to whether paragraph (2) or (3) applies to any particular

case”.

20

The Energy (Northern Ireland) Order 2003 (S.I. 2003/419 (N.I. 6))

24         

The Energy (Northern Ireland) Order 2003 is amended as follows.

25    (1)  

Article 42 (orders for securing compliance) is amended as follows.

      (2)  

In paragraph (1), for “, (5) and” substitute “and (5) to”.

      (3)  

In paragraphs (2) and (4), for “(5) and” substitute “(5) to”.

25

      (4)  

In paragraph (5), omit sub-paragraph (b) and the “or” preceding it.

      (5)  

After that paragraph insert—

   “(5A)  

Before making a final order or making or confirming a provisional

order in relation to a licence holder, the Authority shall consider

whether it would be more appropriate to proceed under the

30

Competition Act 1998.

     (5B)  

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

provisional order in relation to a licence holder if it considers that

it would be more appropriate to proceed under the Competition

Act 1998.”

35

      (6)  

In paragraph (7)—

(a)   

in the words before sub-paragraph (a), after “(6)” insert “or decides

that it would be more appropriate to proceed under the Competition

Act 1998”, and

(b)   

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

40

 
 

Enterprise and Regulatory Reform Bill
Schedule 15 — Minor and consequential amendments: Part 4

243

 

26         

In article 45 (financial penalties), for paragraph (3) substitute—

    “(3)  

Before imposing a penalty under paragraph (1) or (2) the

Authority shall consider whether it would be more appropriate to

proceed under the Competition Act 1998.

     (3A)  

The Authority shall not impose a penalty under paragraph (1) or

5

(2) if it considers that it would be more appropriate to proceed

under the Competition Act 1998.”

The Water and Sewerage Services (Northern Ireland) Order 2006 (S.I. 2006/3336 (N.I. 21))

27         

The Water and Sewerage Services (Northern Ireland) Order 2006 is amended

as follows.

10

28    (1)  

Article 31 (exceptions to duty to enforce) is amended as follows.

      (2)  

In paragraph (1), omit sub-paragraph (d) and the “or” preceding it.

      (3)  

After that paragraph insert—

   “(1A)  

Before making an enforcement order or confirming a provisional

enforcement order under Article 30, the Authority shall consider

15

whether it would be more appropriate to proceed under the

Competition Act 1998.

     (1B)  

The Authority shall not make an enforcement order or confirm a

provisional enforcement order under that Article if it considers

that it would be more appropriate to proceed under the

20

Competition Act 1998.”

      (4)  

In paragraph (3)—

(a)   

in the words before sub-paragraph (a)—

(i)   

for “, (c) or (d)” substitute “or (c)”, and

(ii)   

after “paragraph (1)” insert “or decides that it would be more

25

appropriate to proceed under the Competition Act 1998”, and

(b)   

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

29         

In article 35 (financial penalties), for paragraph (11) substitute—

   “(11)  

Before imposing a penalty under this Article the Authority shall

consider whether it would be more appropriate to proceed under

30

the Competition Act 1998.

     (12)  

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

considers that it would be more appropriate to proceed under the

Competition Act 1998.”

Schedule 15

35

Section 57

 

Minor and consequential amendments: Part 4

 
 

Enterprise and Regulatory Reform Bill
Schedule 15 — Minor and consequential amendments: Part 4

244

 

Civil Aviation Act 1982 (c. 16)

1          

In Schedule 1 to the Civil Aviation Act 1982 (constitution etc. of the

Authority), in paragraph 15—

(a)   

the existing text becomes sub-paragraph (1), and

(b)   

after that sub-paragraph insert—

5

    “(2)  

The power in sub-paragraph (1) is subject to provision in

rules made under section 51 of the Competition Act 1998

by virtue of paragraph 1A of Schedule 9 to that Act in

respect of the exercise of a function under Part 1 of that

Act.”

10

Gas Act 1986 (c. 44)

2          

In section 36A of the Gas Act 1986 (functions with respect to competition), in

subsections (3), (3A) and (7)(b), after “38(1) to (6)” (in each place where it

occurs) insert “, 40B(1) to (4)”.

Electricity Act 1989 (c. 29)

15

3          

In section 43 of the Electricity Act 1989 (functions with respect to

competition), in subsections (3), (3A) and (6)(b), after “38(1) to (6)” (in each

place where it occurs) insert “, 40B(1) to (4)”.

Water Industry Act 1991 (c. 56)

4          

The Water Industry Act 1991 is amended as follows.

20

5          

In section 31 (functions with respect to competition), in subsections (3), (4A)

and (8)(b), after “38(1) to (6)” (in each place where it occurs) insert “, 40B(1)

to (4)”.

6          

In Schedule 1A (constitution etc. of the Authority), in paragraph 10, after

sub-paragraph (2) insert—

25

    “(3)  

Sub-paragraph (1) is subject to provision in rules made under

section 51 of the Competition Act 1998 by virtue of paragraph 1A

of Schedule 9 to that Act in respect of the exercise of a function

under Part 1 of that Act.”

Railways Act 1993 (c. 43)

30

7          

In section 67 of the Railways Act 1993 (functions with respect to

competition), in subsections (3), (3A) and (8)(b), after “38(1) to (6)” (in each

place where it occurs) insert “, 40B(1) to (4)”.

Competition Act 1998 (c. 41)

8          

The Competition Act 1998 is amended as follows.

35

9          

In section 26 (powers when conducting investigations), in subsection (3)(b),

for “42 to” substitute “43 and”.

10         

In section 38 (guidance on level of penalties), in subsection (9), for “an appeal

tribunal” substitute “the Tribunal”.

 
 

Enterprise and Regulatory Reform Bill
Schedule 15 — Minor and consequential amendments: Part 4

245

 

11         

In section 54 (regulators), in subsection (1)—

(a)   

omit paragraph (c), and

(b)   

for paragraph (f) substitute—

“(f)   

the Northern Ireland Authority for Utility

Regulation;”.

5

12    (1)  

Schedule 1 (exclusions: mergers and concentrations) is amended as follows.

      (2)  

In paragraph 5—

(a)   

omit “to the Competition Commission” (in each place where it

occurs), and

(b)   

for “the Commission” (in each place where it occurs) substitute “the

10

CMA”.

Utilities Act 2000 (c. 27)

13         

In Schedule 1 to the Utilities Act 2000 (constitution etc. of the Authority), in

paragraph 9, after sub-paragraph (2) insert—

   “(2A)  

Sub-paragraph (1) is subject to provision in rules made under

15

section 51 of the Competition Act 1998 by virtue of paragraph 1A

of Schedule 9 to that Act in respect of the exercise of a function

under Part 1 of that Act.”

Transport Act 2000 (c. 38)

14         

In section 86 of the Transport Act 2000 (functions with respect to

20

competition), in subsections (3), (4)(b) and (7)(b), after “38(1) to (6)” (in each

place where it occurs) insert “, 40B(1) to (4)”.

Enterprise Act 2002 (c. 40)

15         

The Enterprise Act 2002 is amended as follows.

16    (1)  

Section 25 (extension of time-limits) is amended as follows.

25

      (2)  

In subsection (2), for the words from “has failed” to the end of the subsection

substitute “has failed (with or without a reasonable excuse) to comply with

any requirement of a notice under section 109”.

      (3)  

For subsection (3) substitute—

“(3)   

An extension under subsection (2) shall come into force when notice

30

of the extension is given and end—

(a)   

when the person concerned provides the information or

documents to the satisfaction of the CMA or (as the case may

be) appears as a witness in accordance with the requirements

of the CMA; or

35

(b)   

if earlier, the CMA cancels the extension.”

17         

Omit section 31 (information powers in relation to completed mergers).

18    (1)  

Section 32 (supplementary provision for purposes of sections 25 and 31) is

amended as follows.

      (2)  

Omit subsections (1) to (3).

40

      (3)  

In subsection (4), omit “or subsection (3)(a) above”.

 
 

Enterprise and Regulatory Reform Bill
Schedule 15 — Minor and consequential amendments: Part 4

246

 

      (4)  

In the heading, for “sections 25 and 31” substitute “section 25”.

19    (1)  

Section 34A (duty where case referred by European Commission) is

amended as follows.

      (2)  

For subsection (5) substitute—

“(5)   

The CMA may extend the preliminary assessment period if it

5

considers that any of the persons carrying on the enterprises

concerned has failed (whether with or without reasonable excuse) to

comply with any requirement of a notice under section 109.”

      (3)  

For subsection (6) substitute—

“(6)   

An extension under subsection (5) shall come into force when

10

published under section 107.

(6A)   

An extension under subsection (5) shall continue in force until—

(a)   

the person concerned provides the information or documents

to the satisfaction of the CMA or (as the case may be) appears

as a witness in accordance with the requirements of the CMA;

15

or

(b)   

the CMA publishes its decision to cancel the extension.”

      (4)  

Omit subsection (7).

20         

Omit section 34B (power to request information in referred cases).

21    (1)  

Section 42 (intervention by Secretary of State in certain public interest cases)

20

is amended as follows.

      (2)  

In subsection (1), in paragraph (d)(i)—

(a)   

for “section 22(3)(a) or (e)” substitute “section 22(3)(za), (a) or (e)”,

and

(b)   

for “33(3)(a) or (e)” substitute “33(3)(za), (a) or (e)”.

25

      (3)  

In subsection (5), for “to 32” substitute “to 30”.

      (4)  

In subsection (6), in the words before paragraph (a), for “to 32” substitute “to

30”.

      (5)  

In that subsection, in paragraph (b), for “sections 25(1) to (3), (6) and (8) and

31” substitute “section 25(1) to (3), (6) and (8)”.

30

      (6)  

In that subsection, in paragraph (h)—

(a)   

omit “, and the power to request information under section 31(1) as

so applied,”, and

(b)   

after “existing time-limits” insert “by virtue of section 24 (as so

applied)”.

35

      (7)  

In that subsection, in paragraph (i), after “existing time-limits” insert “by

virtue of section 24 (as so applied)”.

      (8)  

In that subsection, omit paragraph (j).

      (9)  

In that subsection, in paragraph (k), for “to 32” substitute “to 30”.

     (10)  

In that subsection, omit paragraph (l) and the word “and” immediately

40

preceding it.

 
 

Enterprise and Regulatory Reform Bill
Schedule 15 — Minor and consequential amendments: Part 4

247

 

22         

In section 46 (references under section 45: supplementary), in subsection

(1)(a), omit “or 96(3)”.

23    (1)  

Section 46B (extension of preliminary assessment period) is amended as

follows.

      (2)  

For subsection (1) substitute—

5

“(1)   

The CMA may extend the preliminary assessment period for the

purposes of section 46A if it considers that any of the persons

carrying on the enterprises concerned has failed (whether with or

without reasonable excuse) to comply with any requirement of a

notice under section 109.”

10

      (3)  

Omit subsection (2).

      (4)  

For subsection (3) substitute—

“(3)   

An extension under subsection (1) shall come into force when

published under section 107.

(3A)   

An extension under subsection (1) shall continue in force until—

15

(a)   

the person concerned provides the information or documents

to the satisfaction of the CMA or (as the case may be) appears

as a witness in accordance with the requirements of the CMA;

or

(b)   

the CMA publishes its decision to cancel the extension.”

20

      (5)  

Omit subsection (4).

24         

Omit section 46C (power to request information in referred cases).

25    (1)  

Section 49 (variation of references under section 45) is amended as follows.

      (2)  

In subsection (2), omit “1,”.

      (3)  

In subsection (3), omit “1,”.

25

      (4)  

In subsection (4) —

(a)   

omit “any undertaking accepted under paragraph 1 of Schedule 7,

or”, and

(b)   

for “that Schedule” substitute “Schedule 7”.

      (5)  

In subsection (5)—

30

(a)   

omit “undertaking or” (in each place where it occurs),

(b)   

omit “, accepted or” (in each place where it occurs), and

(c)   

omit “, superseded, released”.

26    (1)  

Section 59 (intervention by Secretary of State in special public interest cases)

is amended as follows.

35

      (2)  

In subsection (5), for “to 32” substitute “to 30”.

      (3)  

In subsection (6), in the words before paragraph (a), for “to 32” substitute “to

30”.

      (4)  

In that subsection, in paragraph (c), for “sections 25(1) to (3), (6) and (8) and

31” substitute “section 25(1) to (3), (6) and (8)”.

40

 
 

 
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