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(a) confer functions on OFCOM under Part 1 of the Competition Act 1998 | |
(c. 41) or relate to the carrying out by OFCOM of those functions; or | |
(b) confer functions on OFCOM under Part 4 of the Enterprise Act 2002 (c. | |
40) or relate to the carrying out by OFCOM of those functions. | |
(3) No order is to be made containing provision authorised by this section unless | 5 |
a draft of the order has been laid before Parliament and approved by a | |
resolution of each House. | |
356 OFCOM’s functions under Part 4 of the Enterprise Act 2002 | |
(1) The functions to which subsection (2) applies shall be concurrent functions of | |
OFCOM and the Office of Fair Trading. | 10 |
(2) This subsection applies to the functions of the Office of Fair Trading under Part | |
4 of the Enterprise Act 2002 (market investigations) (other than sections 166 | |
and 171) so far as relating to commercial activities connected with | |
communications matters. | |
(3) So far as necessary for the purposes of, or in connection with, subsections (1) | 15 |
and (2), references in Part 4 of the Enterprise Act 2002 to the Office of Fair | |
Trading (including references in provisions of that Act applied by that Part) | |
shall be construed as including references to OFCOM except— | |
(a) in sections 166 and 171; and | |
(b) where the context otherwise requires. | 20 |
(4) In subsection (2) the reference to activities connected with communications | |
matters, so far as it is a reference to activities connected with any apparatus | |
falling within paragraph (d) of section 355(1), includes a reference to— | |
(a) the supply and export of any such apparatus; and | |
(b) the production or acquisition of any such apparatus for supply or | 25 |
export. | |
(5) Before the Office of Fair Trading or OFCOM first exercises in relation to any | |
matter functions which are exercisable concurrently by virtue of this section, | |
that person shall consult the other. | |
(6) Neither the Office of Fair Trading nor OFCOM shall exercise in relation to any | 30 |
matter functions which are exercisable concurrently by virtue of this section if | |
functions which are so exercisable have been exercised in relation to that | |
matter by the other. | |
(7) It shall be the duty of OFCOM, for the purpose of assisting the Competition | |
Commission in carrying out an investigation on a reference made to them by | 35 |
OFCOM by virtue of subsection (1), to give to the Commission— | |
(a) any information which is in OFCOM’s possession and relates to | |
matters falling within the scope of the investigation and— | |
(i) is requested by the Commission for that purpose, or | |
(ii) is information which, in OFCOM’s opinion, it would be | 40 |
appropriate for that purpose to give to the Commission without | |
any such request; | |
and | |
(b) any other assistance which the Commission may require, and which it | |
is within OFCOM’s power to give, in relation to any such matters, | 45 |
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and the Commission, for the purposes of carrying out any such investigation, | |
shall take into account any information given to it for that purpose under this | |
subsection. | |
(8) If any question arises as to whether, by virtue of this section, any functions fall | |
to be, or are capable of being, carried out by OFCOM in relation to any | 5 |
particular case, that question shall be referred to and determined by the | |
Secretary of State. | |
(9) No objection shall be taken to anything done under Part 4 of the Enterprise Act | |
2002 (c. 40) by or in relation to OFCOM on the ground that it should have been | |
done by or in relation to the Office of Fair Trading. | 10 |
(10) Section 117 of the Enterprise Act 2002 (offences of supplying false or | |
misleading information) as applied by section 180 of that Act shall have effect | |
so far as relating to functions exercisable by OFCOM by virtue of this section | |
as if the references in section 117(1)(a) and (2) to the Office of Fair Trading | |
included references to OFCOM. | 15 |
(11) Subject to subsection (12), section 3 does not apply in relation to anything done | |
by OFCOM in the carrying out of their functions by virtue of this section. | |
(12) In the carrying out of any functions by virtue of this section OFCOM may | |
nevertheless have regard to any of the matters in respect of which a duty is | |
imposed by section 3(1) or (3) if it is a matter to which the Office of Fair Trading | 20 |
is entitled to have regard in the carrying out of those functions. | |
357 OFCOM’s functions under the Competition Act 1998 | |
(1) The functions to which subsection (2) applies shall be concurrent functions of | |
OFCOM and the Office of Fair Trading. | |
(2) This subsection applies to the functions of the Office of Fair Trading under the | 25 |
provisions of Part 1 of the Competition Act 1998 (c. 41) (other than sections | |
38(1) to (6) and 51) so far as relating to— | |
(a) agreements, decisions or concerted practices which are of the kind | |
mentioned in section 2(1) of that Act (agreements, decisions or practices | |
affecting trade and having as their object or effect the prevention, | 30 |
restriction or distortion of competition) and which relate to activities | |
connected with communications matters; or | |
(b) conduct which is of the kind mentioned in section 18(1) of that Act | |
(conduct abusing a dominant position) and relates to such activities. | |
(3) So far as necessary for the purposes of, or in connection with, the provisions of | 35 |
subsections (1) and (2), references to the Office of Fair Trading in Part 1 of the | |
Competition Act 1998 are to be read as including references to OFCOM, | |
except— | |
(a) in sections 38(1) to (6), 51, 52(6) and (8) and 54, and | |
(b) where the context otherwise requires. | 40 |
(4) In subsection (2), the reference to activities connected with communications | |
matters, so far as it is a reference to activities connected with any apparatus | |
falling within paragraph (d) of section 355(1), includes a reference to— | |
(a) the supply and export of any such apparatus; and | |
(b) the production or acquisition of any such apparatus for supply or | 45 |
export. | |
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(5) In section 54 of the Competition Act 1998 (c. 41)— | |
(a) in subsection (1) (definition of “regulator” for the purposes of Part 1 of | |
that Act), for paragraph (a) there shall be substituted— | |
“(a) the Office of Communications;” | |
(b) in subsection (4) (power to make regulations about concurrent | 5 |
functions of the Office of Fair Trading and sectoral regulators), “or by | |
Chapter V of Part I of the Transport Act 2000” there shall be inserted “to | |
this Act, by Chapter 5 of Part 1 of the Transport Act 2000 or by section | |
357 of the Communications Act 2003”. | |
(6) In paragraph 5 of Schedule 2 to the Competition Act 1998 (publication of list of | 10 |
networking arrangements under the 1990 Act excluded from the Chapter 1 | |
prohibition)— | |
(a) in sub-paragraph (2), for “The Independent Television Commission | |
(‘ITC’)” there shall be substituted “OFCOM”; and | |
(b) in sub-paragraph (3), for “The ITC” there shall be substituted | 15 |
“OFCOM”. | |
(7) In section 59(1) of the Competition Act 1998 (interpretation of Part 1), after the | |
definition of “Minister of the Crown” there shall be inserted— | |
“‘OFCOM’ means the Office of Communications;”. | |
(8) OFCOM may carry out, in respect of activities connected with communications | 20 |
matters and concurrently with the Office of Fair Trading, the functions of the | |
Office of Fair Trading under any of paragraphs 3, 7, 19(3) and 36 to 39 of | |
Schedule 13 to the Competition Act 1998 (transitional provisions). | |
(9) If any question arises as to whether, by virtue of this section, any functions fall | |
to be, or are capable of being, carried out by OFCOM in relation to a particular | 25 |
case, that question shall be referred to and determined by the Secretary of State. | |
(10) No objection shall be taken to anything done under by or in relation to OFCOM | |
under the Competition Act 1998 on the ground that it should have been done | |
by or in relation to the Office of Fair Trading. | |
(11) Subject to subsection (12), section 3 does not apply in relation to anything done | 30 |
by OFCOM in the carrying out of their functions by virtue of this section. | |
(12) In the carrying out of any functions by virtue of this section OFCOM may | |
nevertheless have regard to any of the matters in respect of which a duty is | |
imposed by section 3(1) or (3) if it is a matter to which the Office of Fair Trading | |
is entitled to have regard in the carrying out of those functions. | 35 |
358 Application of the Competition Act 1998 to news provision | |
(1) Section 194A of the 1990 Act (which modifies the Competition Act 1998 in | |
relation to agreements relating to Channel 3 news provision) shall be amended | |
as follows. | |
(2) In subsections (2), (6) and (7)(b)(i) (consultations with and notifications to the | 40 |
Office of Fair Trading), after the words “the OFT”, in each place where they | |
occur, there shall be inserted “and OFCOM”. | |
(3) In subsection (3)(b)— | |
(a) for “section 31(2)” there shall be substituted “section 272 of the | |
Communications Act 2003”; and | 45 |
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(b) for “section 31(1) and (2)” there shall be substituted “that section of that | |
Act of 2003”. | |
(4) In subsection (5)(c) (declaration without notification), after “the OFT” there | |
shall be inserted “or OFCOM or both of them”. | |
(5) In subsection (7) (restriction on exercise by Office of Fair Trading of Chapter III | 5 |
powers)— | |
(a) for “The OFT may not” there shall be substituted “Neither the OFT nor | |
OFCOM may”; and | |
(b) for paragraph (a) there shall be substituted— | |
“(a) the Secretary of State has been notified by the OFT or (as | 10 |
the case may be) by OFCOM of its or their intention to | |
do so; and”. | |
(6) In subsection (8) (notice by Office of Fair Trading to the Secretary of State), for | |
the words from the beginning to “assist” in paragraph (a) there shall be | |
substituted— | 15 |
“(8) Where the OFT or OFCOM is or are proposing to exercise any Chapter | |
III powers in respect of a relevant agreement, it or they must give the | |
Secretary of State particulars of the agreement and such other | |
information— | |
(a) it considers or (as the case may be) they consider will assist”. | 20 |
(7) In subsection (9), in the definition of “Chapter III powers”, for “given to the | |
OFT by” there shall be substituted “of the OFT and of OFCOM under”. | |
Chapter 2 | |
Newspaper mergers | |
Introductory | 25 |
359 Repeal of existing newspaper merger regime | |
Sections 57 to 62 of the Fair Trading Act 1973 (c. 41) (newspaper merger | |
references) shall cease to have effect. | |
360 Repeal of exclusion for newspaper mergers from general merger controls | |
Section 69 of the Enterprise Act 2002 (c. 40) (exclusion of newspaper mergers | 30 |
from references under Part 3 of that Act) shall cease to have effect. | |
Adaptation for newspaper mergers of main merger regime | |
361 Newspaper public interest considerations | |
After section 58(2) of the Enterprise Act 2002 (considerations specified as | |
public interest considerations for the purpose of the main merger regime) there | 35 |
shall be inserted— | |
“(2A) The need for— | |
(a) accurate presentation of news; and | |
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(b) free expression of opinion; | |
in newspapers is specified in this section. | |
(2B) The need for, to the extent that it is reasonable and practicable, a | |
plurality of views in newspapers in each market for newspapers in the | |
United Kingdom or a part of the United Kingdom is specified in this | 5 |
section.” | |
362 Adaptation of role of OFT in initial investigations and reports | |
(1) In section 44(3)(b) of the Enterprise Act 2002 (c. 40) (initial report by OFT in | |
public interest cases must include summary of representations about public | |
interest considerations) after the word “concerned” there shall be inserted | 10 |
“(other than a newspaper public interest consideration)”. | |
(2) After section 44(5) of that Act there shall be inserted— | |
“(5A) The report may, in particular, contain a summary of any | |
representations about the case which have been received by the OFT | |
and which relate to any newspaper public interest consideration | 15 |
mentioned in the intervention notice concerned and which is or may be | |
relevant to the Secretary of State’s decision as to whether to make a | |
reference under section 45.” | |
(3) After section 44(7) of that Act there shall be inserted— | |
“(8) In this Part “newspaper public interest consideration” means any | 20 |
consideration which, at the time of the giving of the intervention notice | |
concerned— | |
(a) is specified in section 58(2A) or (2B); or | |
(b) in the opinion of the Secretary of State, is concerned with | |
newspapers and ought to be specified in section 58. | 25 |
(9) In this Part “newspaper” means a daily, Sunday or local (other than | |
daily or Sunday) newspaper circulating wholly or mainly in the United | |
Kingdom or in a part of the United Kingdom. | |
(10) The Secretary of State may by order amend subsection (9).” | |
363 Additional investigation and report by OFCOM | 30 |
After section 44 of the Enterprise Act 2002 (investigation and report by OFT in | |
public interest cases) there shall be inserted— | |
“44A Additional investigation and report by OFCOM: newspaper mergers | |
(1) Subsection (2) applies where— | |
(a) the Secretary of State has given an intervention notice in relation | 35 |
to a relevant merger situation; and | |
(b) the intervention notice mentions any newspaper public interest | |
consideration. | |
(2) OFCOM shall, within such period as the Secretary of State may require, | |
give a report to the Secretary of State on the effect of the consideration | 40 |
or considerations concerned on the case. | |
(3) The report shall contain— | |
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(a) advice and recommendations on any newspaper public interest | |
consideration mentioned in the intervention notice concerned | |
and which is or may be relevant to the Secretary of State’s | |
decision as to whether to make a reference under section 45; and | |
(b) a summary of any representations about the case which have | 5 |
been received by OFCOM and which relate to any such | |
consideration. | |
(4) OFCOM shall carry out such investigations as they consider | |
appropriate for the purposes of producing a report under this section.” | |
Extension of special public interest regime | 10 |
364 Extension of special public interest regime for certain newspaper mergers | |
(1) Section 59 of the Enterprise Act 2002 (c. 40) (intervention by Secretary of State | |
in special public interest cases) shall be amended as follows. | |
(2) For subsections (3) and (4) (definition of “special merger situation”) there shall | |
be substituted— | 15 |
“(3) For the purposes of this Part a special merger situation has been created | |
if— | |
(a) the condition mentioned in subsection (3A) is satisfied; and | |
(b) immediately before the enterprises concerned ceased to be | |
distinct, either— | 20 |
(i) the conditions mentioned in subsection (3B) were | |
satisfied; or | |
(ii) the condition mentioned in subsection (3C) or (3D) was | |
satisfied. | |
(3A) The condition mentioned in this subsection is that— | 25 |
(a) no relevant merger situation has been created because of section | |
23(1)(b) and (2)(b); but | |
(b) a relevant merger situation would have been created if those | |
enactments were disregarded. | |
(3B) The conditions mentioned in this subsection are that— | 30 |
(a) at least one of the enterprises concerned was carried on in the | |
United Kingdom or by or under the control of a body corporate | |
incorporated in the United Kingdom; and | |
(b) a person carrying on one or more of the enterprises concerned | |
was a relevant government contractor. | 35 |
(3C) The condition mentioned in this subsection is that, in relation to the | |
supply of newspapers of any description, at least one-quarter of all the | |
newspapers of that description which were supplied in the United | |
Kingdom, or in a substantial part of the United Kingdom, were | |
supplied by the person or persons by whom one of the enterprises | 40 |
concerned was carried on. | |
(3D) The condition mentioned in this subsection is that, in relation to the | |
supply of newspaper advertising of any description, at least one- | |
quarter of all the advertising of that description which was supplied in | |
the United Kingdom, or in a substantial part of the United Kingdom, | 45 |
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was supplied by the person or persons by whom one of the enterprises | |
concerned was carried on.” | |
(3) After subsection (6) there shall be inserted— | |
“(6A) For the purpose of deciding whether the proportion of one-quarter | |
mentioned in subsection (3C) or (3D) is fulfilled with respect to | 5 |
newspapers or newspaper advertising of any description, the decision- | |
making authority shall apply such criterion (whether value, cost, price, | |
quantity, capacity, number of workers employed or some other | |
criterion, of whatever nature), or such combination of criteria, as the | |
decision-making authority considers appropriate. | 10 |
(6B) References in subsections (3C) and (3D) to the supply of newspapers or | |
(as the case may be) newspaper advertising shall, in relation to | |
newspapers or newspaper advertising of any description which are the | |
subject of different forms of supply, be construed in whichever of the | |
following ways the decision-making authority considers appropriate— | 15 |
(a) as references to any of those forms of supply taken separately; | |
(b) as references to all those forms of supply taken together; or | |
(c) as references to any of those forms of supply taken in groups. | |
(6C) For the purposes of subsection (6B) the decision-making authority may | |
treat newspapers or newspaper advertising as being the subject of | 20 |
different forms of supply whenever— | |
(a) the transactions concerned differ as to their nature, their parties, | |
their terms or their surrounding circumstances; and | |
(b) the difference is one which, in the opinion of the decision- | |
making authority, ought for the purposes of that subsection to | 25 |
be treated as a material difference. | |
(6D) The criteria for deciding when newspapers or newspaper advertising | |
can be treated, for the purposes of this section, as newspapers or | |
newspaper advertising of a separate description shall be such as in any | |
particular case the decision-making authority considers appropriate in | 30 |
the circumstances of that case. | |
(6E) The Secretary of State may by order amend the condition mentioned in | |
subsection (3)(b)(ii).” | |
(4) In subsection (9) (definitions)— | |
(a) the word “and” at the end of the definition of “defence” shall cease to | 35 |
have effect; and | |
(b) after the definition of “government contractor” there shall be inserted | |
“and | |
“newspaper advertising” means advertising in newspapers.” | |
365 Adaptation of role of OFT in special public interest regime | 40 |
(1) Section 61 of the Enterprise Act 2002 (c. 40) (initial investigation and report by | |
OFT in special public interest cases) shall be amended as follows. | |
(2) In subsection (3)(b) (report must include summary of representations about | |
considerations specified in section 58) after the word “concerned” there shall | |
be inserted “(other than a consideration which, at the time of the giving of the | 45 |
notice, was specified in section 58(2A) or (2B))”. | |
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