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'( ) In subsection (4), omit paragraph (c) and the "and" immediately after it.'.

No. 18, in page 79, line 12, after '(5)' insert '--


No. 19, in page 79, line 13, at end insert--

'(b) after paragraph (b), insert "and";
(c) omit paragraph (d) and the "and" immediately before it.'.

No. 20, in page 80, line 9, at end insert--

'( ) In subsection (4), omit paragraph (c) and the "and" immediately after it.'.

No. 21, in page 81, line 4, at end insert--

'( ) In subsection (5), omit "or in subsection (3) above".
( ) In subsection (6), omit "or in subsection (3) above".'.

No. 22, in page 81, line 39, at end insert--

'( ) In subsection (4), omit paragraph (c) and the "and" immediately after it.'.

No. 23, in page 82, line 37, at end insert--

'( ) In paragraph (4), omit sub-paragraph (c) and the "and" immediately after it.'.

No. 24, in page 83, line 26, after '(4)' insert '--


8 Jul 1998 : Column 1201

No. 25, in page 83, line 27, at end insert--

'(b) after sub-paragraph (b) insert "and";
(c) omit sub-paragraph (d) and the "and" immediately before it.'.

No. 26, in page 89, line 49, at end insert--

'( ) Omit section 131 (modification of Restrictive Trade Practices Act 1976).'.

No. 52, in page 90, line 12, at end insert--

'( ) In section 21 (duties as to exercise of regulatory functions), in subsection (6), at the end of the paragraph about regulatory functions, insert "other than any functions assigned to him by virtue of section 67(3) of that Act ("Competition Act functions").
(7) The Regulator may, when exercising any Competition Act function, have regard to any matter to which he would have regard if--
(a) he were under the duty imposed by subsection (1) or (2) above in relation to that function; and
(b) the matter is one to which the DGFT could have regard if he were exercising that function.".'--[Mr. Ian McCartney.]

Clause 59


Amendment made: No. 14, in page 31, line 31, at end insert--
'( ) The fact that to a limited extent the Chapter I prohibition does not apply to an agreement, because of an exclusion provided by or under this Part or any other enactment, does not require those provisions of the agreement to which the exclusion relates to be disregarded when considering whether the agreement infringes the prohibition for other reasons.'.--[Mr. Ian McCartney.]

Clause 60

Principles to be applied in determining questions

Mr. Lansley: I beg to move amendment No. 61, in page 31, line 40, leave out from 'concerned)' to end of line 43 and insert

'the provisions of this Part are applied in a manner which is consistent with the application of the corresponding provisions of Community law.'.

Mr. Deputy Speaker: With this, it will be convenient to discuss the following amendments: No. 62, in page 31, line 44, at beginning insert

'Subject to the other provisions of this Part,'.

No. 63, in page 31, line 44, leave out 'determines a question' and insert 'deals with a matter'.

No. 64, in page 31, line 45, leave out from 'act' to 'whether' in line 1 on page 32.

No. 65, in page 32, line 4, leave out 'determining that question' and insert 'dealing with that matter'.

No. 66, in page 32, line 6, leave out from 'time' to 'Community' in line 7 and insert

'dealing with a similar matter under'.

No. 67, in page 32, line 13, at end insert--

'(4A) Subject to subsection (4B), where any question arises concerning the interpretation of this Part and, in particular, whether for the purposes of this section--
(a) a provision of Community law is a corresponding provision,
(b) a relevant difference exists between a provision of this Part and a corresponding provision of Community law,

8 Jul 1998 : Column 1202

(c) a matter arising under Community law is a similar matter, or
(d) a decision or statement of the Commission is a relevant decision or statement,
any person with sufficient interest in the matter to which the question relates may apply to the relevant court for the determination of that question and the court may determine that question and make such declaration as it considers appropriate.
(4B) Where any question concerning the interpretation of this Part arises in proceedings before an appeal tribunal, an application for the determination of that question by a relevant court in accordance with subsection (4A) may only be made with the leave of that tribunal.
(4C) In subsections (4A) and (4B) "relevant court" means--
(a) in England and Wales, the High Court;
(b) in Scotland, the Court of Session;
(c) in Northern Ireland, the High Court.'.

No. 68, in page 32, line 18, at end insert--

'(7) In this section "a provision of Community law" includes the general principles of Community law and decisions of the European Court.'.

New clause 3--Decisions on matters subject to a Commission investigation--

'.--(1) Subject to subsection (3) below, the Director shall not make a decision that--
(a) an agreement infringes the Chapter I prohibition; or
(b) conduct infringes the Chapter II prohibition,
if that agreement or conduct is the subject of an investigation by the European Commission under a provision of Community law relating to Article 85 or 86.
(2) Nothing in this section shall prevent the Director from conducting in respect of that agreement or conduct--
(a) an investigation in accordance with section 25; or
(b) a Director's investigation or Director's special investigation within the meaning of Part II.
(3) If the Director has grounds to believe that the European Commission will conclude that agreement or conduct to which subsection (1) applies will not be found to be within the Commission's competition law jurisdiction, he may proceed to make a decision under sections 14 and 22.'.

Mr. Lansley: At this late hour, the House will forgive me if I do not explain the arguments in their full form--the 18-page version. Earlier in the debate, the Minister was at pains to say that the Government believe that it is important to respond to representations--not least from the Confederation of British Industry, for example. He will be aware that, like my hon. Friends and members of the public, the CBI is very concerned that the provisions in clause 60 will have to be better defined in the legislation if the Government's intentions are to be realised accurately. We essentially believe that the issues should be better defined in legislation rather than waiting for the courts to do the job.

The matters of "corresponding question" and "relevant difference", for example, have not yet been defined in the Bill. If the Government's intention is to align UK and Community law as closely as possible, they should be able to tell us what constitutes the relevant differences. Otherwise, over time, the principles may begin todiverge again. For example, clause 60 deals with incompatibilities. Will the Government list them? Where do the Government expect the Bill to depart from European Community law?

8 Jul 1998 : Column 1203

In respect of the purpose of amendment No. 61 and the others grouped with it, I am attempting to do the Government's job for them. If we cannot have the legislation that we want, we may as well amend the Bill to achieve the secondary objective of which industry is seized--clarity and certainty. We will end up with lack of clarity and uncertainty if we proceed with clause 60 without knowing what the corresponding questions are and how they are to be determined. The clause should be amended so that all the provisions in the Bill are treated as corresponding in effect. We should not have relevant differences--those that exist should be specified. Instead of including phrases or provisions from Community law, we should replace corresponding provisions or inconsistency with a much clearer definition.

Amendment No.67 is additional and stands alone. It seeks to provide a better mechanism for determining the issues that arise on clause 60 by permitting a person with sufficient interest in the matter to apply for a determination by the relevant courts so that a declaratory ruling may be obtained.

I have provided an unsatisfactory explanation of a matter on which I could have spent considerable time. I am concerned that so far--even in Standing Committee--Ministers have not examined clause 60 sufficiently. The phraseology used in the clause opens up precisely the differences between UK and EC law to which they objected in other respects. It should have been replaced by a provision that aligned the two systems of jurisprudence instead of one that served the Government's purposes without telling us in what respect they envisaged that the relevant differences and incompatibilities would emerge over time.

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