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Schedule 10, page 89, leave out lines 9 and 10.
Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 91. I shall speak also to Amendments Nos. 92 and 94.
Amendments Nos. 91 and 92 respond to a matter raised by the noble Lord, Lord McNally, on behalf of the noble Lord, Lord Ezra, at Report stage in this House. They deal with an interaction between the Bill and provisions in the Railways Act 1993. The amendments would preclude the Rail Regulator or the Director General of Fair Trading from requiring modifications to access agreements, to the extent that these are not already excluded as legal requirements, as a possible remedy for breach of the Chapter I prohibition.
This is a worthwhile clarification of the position and I am grateful to the noble Lord for raising this point. I should emphasise, however, that the amendment does not prevent action being taken against anti-competitive provisions in access agreements that are not the subject of a legal requirement. In such a case the parties would be in breach of a prohibition and would be exposed to penalties. Third parties would be able to seek damages and interim measures could also be applied.
Amendment No. 94 disapplies the Rail Regulator's statutory duties under the Channel Tunnel Rail Link Act 1996 when he is exercising concurrent functions under the Bill, in the same way that the utility regulators' statutory general duties have been disapplied from the exercise of the regulators' concurrent functions.
Moved, That the House do agree with the Commons in their Amendment No. 91.--(Lord McIntosh of Haringey.)
On Question, Motion agreed to.
91
92
Schedule 10, page 89, leave out lines 12 to 24 and insert--
Page 89, line 33, at end insert--
Page 89, line 45, at end insert--
Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 92 to 94.
Moved, That the House do agree with the Commons in their Amendments Nos. 92 to 94.--(Lord McIntosh of Haringey.)
On Question, Motion agreed to.
(""(6A) Neither the Director General of Fair Trading nor the Regulator may exercise, in respect of an access agreement, the powers given by section 33 (enforcement directions) or section 36(2) (interim directions) of the Competition Act 1998.
(6B) Subsection (6A) does not apply to the exercise of the powers given by section 36(2) in respect of conduct--
(a) which is connected with an access agreement; and
(b) in respect of which section 36(1)(b) of that Act applies."").
93
("( ) Omit section 131 (modification of Restrictive Trade Practices Act 1976).").
94
("( ) 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.".").
95
Schedule 11, page 92, line 38, at end insert--
Lord Simon of Highbury: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 95. I shall speak also to Amendments Nos. 96, 97 and 98.
These are straightforward amendments to correct omissions in Schedule 11 to the Bill. Schedule 11 lists persons to whom and functions for which information obtained under the Bill may be disclosed. Amendment No. 97 adds to Schedule 11 the Independent Television Commission, and Amendment No. 95 adds the Broadcasting Act 1996, which contains the ITC's relevant functions. Amendment No. 98 adds to the schedule the Director of Passenger Rail Franchising and the International Rail Regulator. Amendment No. 96 adds the International Rail Regulator's relevant functions under subordinate legislation made for the purpose of implementing three EC directives on the development of the Community railways.
Moved, That the House do agree with the Commons in their Amendment No. 95.--(Lord Simon of Highbury.)
On Question, Motion agreed to.
("or the Broadcasting Act 1996 (c.55.);").
96
Schedule 11, page 92, line 47, at end insert--
Page 93, line 4, at end insert--
Page 93, line 11, at end insert--
Schedule 12, page 93, line 32, at end insert--
("( ) any subordinate legislation made (whether before or after the passing of this Act) for the purpose of implementing the Council Directive of 29th July 1991 (No 91/440/EEC) on the development of the Community's railways, the Council Directive of 19th June 1995 (No 95/18/EC) on the licensing of railway undertakings or the Council Directive of 19th June 1995 (No 95/19/EC) on the allocation of railway infrastructure capacity and the charging of infrastructure fees;").
97
("( ) the Independent Television Commission;").
98
("( ) the Director of Passenger Rail Franchising;
( ) the International Rail Regulator;").
99
("( ) In sections 35 and 37 to 41, for "the Restrictive Practices Court", in each place, substitute "a relevant Court".
( ) After section 41 insert--
41A. In this Part of this Act, "relevant Court", in relation to proceedings in respect of a course of conduct maintained in the course of a business, means any of the following courts in whose jurisdiction that business is carried on--
(a) in England and Wales or Northern Ireland, the High Court;
(b) in Scotland, the Court of Session.".
( ) In section 42 (appeals from decisions or orders of courts under Part III)--
(a) in subsection (1), at the end add "; but this subsection is subject to subsection (3) of this section";
(b) in subsection (2)(b), after "Scotland," insert "from the sheriff court"; and
(c) after subsection (2) add--
"(3) A decision or order of the Court of Session as the relevant Court may be reviewed, whether on a question of fact or on a question of law, by reclaiming to the Inner House." ").
100
Page 94, line 4, at end insert--
Page 95, line 21, after ("estimates") insert ("forecasts").
Page 95, line 25, after ("estimates") insert ("forecasts").
Page 96, line 4, at end insert--
("( ) In section 85, in subsection (1)(c), after "estimates" (in both places) insert "forecasts".").
101
102
103
("( ) Omit section 22 (which amends the Fair Trading Act 1973).").
104
1.--(1) In this Schedule--
"RPA" means the Resale Prices Act 1976;
"RTPA" means the Restrictive Trade Practices Act 1976;
"continuing proceedings" has the meaning given by paragraph 15;
"the Court" means the Restrictive Practices Court;
"enactment date" means the date on which this Act is passed;
"Director" means the Director General of Fair Trading;
"document" includes information recorded in any form;
"information" includes estimates and forecasts;
"interim period" means the period beginning on the enactment date and ending immediately before the starting date;
"prescribed" means prescribed by an order made by the Secretary of State;
"regulator" means any person mentioned in paragraphs (a) to (g) of paragraph 1 of Schedule 10;
"starting date" means the date on which section 2 comes into force;
"transitional period" means the transitional period provided for in Chapters III and IV of Part IV of this Schedule.
(2) Sections 31, 45, 51, 53, 55, 56, 57 and 59(2) and (3) and paragraph 12 of Schedule 9 ("the applied provisions") apply for the purposes of this Schedule as they apply for the purposes of Part I of this Act.
(3) Section 2(5) applies for the purposes of any provisions of this Schedule which are concerned with the operation of the Chapter I prohibition as it applies for the purposes of Part I of this Act.
(4) In relation to any of the matters in respect of which a regulator may exercise powers as a result of paragraph 35(1), the applied provisions are to have effect as if references to the Director included references to the regulator.
(5) The fact that to a limited extent the Chapter I prohibition does not apply to an agreement because a transitional period is provided by virtue of this Schedule does not require those provisions of the agreement in respect of which there is a transitional period to be disregarded when considering whether the agreement infringes the prohibition for other reasons.
2.--(1) Nothing in this Schedule affects the power of the Secretary of State under section 74 to make transitional provisions or savings.
(2) An order under that section may modify any provision made by this Schedule.
3.--(1) The Director may publish advice and information explaining provisions of this Schedule to persons who are likely to be affected by them.
(2) Any advice or information published by the Director under this paragraph is to be published in such form and manner as he considers appropriate.
4.--(1) The Secretary of State may, at any time during the interim period, make one or more orders for the purpose of providing block exemptions which are effective on the starting date.
(2) An order under this paragraph has effect as if properly made under section 6.
5. An agreement which--
(a) is made during the interim period, and
(b) satisfies the conditions set out in paragraphs (a), (c) and (d) of section 27A(1) of the RTPA,
is to be treated as a non-notifiable agreement for the purposes of the RTPA.
6. In relation to agreements made during the interim period--
(a) the Director is no longer under the duty to take proceedings imposed by section 1(2)(c) of the RTPA but may continue to do so;
(b) section 21 of that Act has effect as if subsections (1) and (2) were omitted; and
(c) section 35(1) of that Act has effect as if the words "or within such further time as the Director may, upon application made within that time, allow" were omitted.
7.--(1) Sub-paragraphs (2) to (4) apply in relation to agreements made during the interim period.
(2) An application may be made to the Director in anticipation of the coming into force of section 13 in accordance with directions given by the Director and such an application is to have effect on and after the starting date as if properly made under section 13.
(3) The Director may, in response to such an application--
(a) give guidance in anticipation of the coming into force of section 2; or
(b) on and after the starting date, give guidance under section 15 as if the application had been properly made under section 13.
(4) Any guidance so given is to have effect on and after the starting date as if properly given under section 15.
8.--(1) Proceedings in respect of an application which is made to the Court under any of the provisions mentioned in sub-paragraph (2), but which is not determined before the starting date, cease on that date.
(2) The provisions are--
(a) sections 2(2), 35(3), 37(1) and 40(1) of the RTPA and paragraph 5 of Schedule 4 to that Act;
(b) section 4(1) of the RTPA so far as the application relates to an order under section 2(2) of that Act; and
(c) section 25(2) of the RPA.
(3) The power of the Court to make an order for costs in relation to any proceedings is not affected by anything in this paragraph or by the repeals made by section 1.
9.--(1) An order in force immediately before the starting date under--
(a) section 2(2), 29(1), 30(1), 33(4), 35(3) or 37(1) of the RTPA; or
(b) section 25(2) of the RPA,
ceases to have effect on that date.
(2) An approval in force immediately before the starting date under section 32 of the RTPA ceases to have effect on that date.
10.--(1) This paragraph applies even though the relevant provisions of the RTPA are repealed by this Act.
(2) The Director is to continue on and after the starting date to be under the duty imposed by section 1(2)(a) of the RTPA to maintain a register in respect of agreements--
(a) particulars of which are, on the starting date, entered or filed on the register;
(b) which fall within sub-paragraph (4);
(c) which immediately before the starting date are the subject of proceedings under the RTPA which do not cease on that date by virtue of this Schedule; or
(d) in relation to which a court gives directions to the Director after the starting date in the course of proceedings in which a question arises as to whether an agreement was, before that date--
(i) one to which the RTPA applied;
(ii) subject to registration under that Act;
(iii) a non-notifiable agreement for the purposes of that Act.
(3) The Director is to continue on and after the starting date to be under the duties imposed by section 1(2)(a) and (b) of the RTPA of compiling a register of agreements and entering or filing certain particulars in the register, but only in respect of agreements of a kind referred to in paragraph (b), (c) or (d) of sub-paragraph (2).
(4) An agreement falls within this sub-paragraph if--
(a) it is subject to registration under the RTPA but--
(i) is not a non-notifiable agreement within the meaning of section 27A of the RTPA, or
(ii) is not one to which paragraph 5 applies;
(b) particulars of the agreement have been provided to the Director before the starting date; and
(c) as at the starting date no entry or filing has been made in the register in respect of the agreement.
(5) Sections 23 and 27 of the RTPA are to apply after the starting date in respect of the register subject to such modifications, if any, as may be prescribed.
(6) In sub-paragraph (2)(d) "court" means--
(a) the High Court;
(b) the Court of Appeal;
(c) the Court of Session;
(d) the High Court or Court of Appeal in Northern Ireland; or
(e) the House of Lords.
11.--(1) Even though section 3 of the RTPA is repealed by this Act, its provisions (and so far as necessary that Act) are to continue to apply, with such modifications (if any) as may be prescribed--
(a) in relation to a continuing application under that section; or
(b) so as to allow an application to be made under that section on or after the starting date in respect of a continuing application under section 1(3) of the RTPA.
(2) "Continuing application" means an application made, but not determined, before the starting date.
12.--(1) Even though section 26 of the RTPA is repealed by this Act, its provisions (and so far as necessary that Act) are to continue to apply, with such modifications (if any) as may be prescribed, in relation to an application which is made under that section, but not determined, before the starting date.
(2) If an application under section 26 is determined on or after the starting date, this Schedule has effect in relation to the agreement concerned as if the application had been determined immediately before that date.
13.--(1) Even though section 35 of the RTPA is repealed by this Act, its provisions (and so far as necessary that Act) are to continue to apply in respect of a person who, immediately before the starting date, has a right by virtue of section 27ZA or 35(2) of that Act to bring civil proceedings in respect of an agreement (but only so far as that right relates to any period before the starting date or, where there are continuing proceedings, the determination of the proceedings).
(2) Even though section 25 of the RPA is repealed by this Act, the provisions of that section (and so far as necessary that Act) are to continue to apply in respect of a person who, immediately before the starting date, has a right by virtue of subsection (3) of that section to bring civil proceedings (but only so far as that right relates to any period before the starting date or, where there are continuing proceedings, the determination of the proceedings).
14.--(1) The Chapter I prohibition does not apply to an agreement at any time when the agreement is the subject of continuing proceedings under the RTPA.
(2) The Chapter I prohibition does not apply to an agreement relating to goods which are the subject of continuing proceedings under section 16 or 17 of the RPA to the extent to which the agreement consists of exempt provisions.
(3) In sub-paragraph (2) "exempt provisions" means those provisions of the agreement which would, disregarding section 14 of the RPA, be--
(a) void as a result of section 9(1) of the RPA; or
(b) unlawful as a result of section 9(2) or 11 of the RPA.
(4) If the Chapter I prohibition does not apply to an agreement because of this paragraph, the provisions of, or made under, the RTPA or the RPA are to continue to have effect in relation to the agreement.
(5) The repeals made by section 1 do not affect--
(a) continuing proceedings; or
(b) proceedings of the kind referred to in paragraph 11 or 12 of this Schedule which are continuing after the starting date.
15.--(1) For the purposes of this Schedule "continuing proceedings" means proceedings in respect of an application made to the Court under the RTPA or the RPA, but not determined, before the starting date.
(2) But proceedings under section 3 or 26 of the RTPA to which paragraph 11 or 12 applies are not continuing proceedings.
(3) The question whether (for the purposes of Part III, or this Part, of this Schedule) an application has been determined is to be decided in accordance with sub-paragraphs (4) and (5).
(4) If an appeal against the decision on the application is brought, the application is not determined until--
(a) the appeal is disposed of or withdrawn; or
(b) if as a result of the appeal the case is referred back to the Court--
(i) the expiry of the period within which an appeal ("the further appeal") in respect of the Court's decision on that reference could have been brought had this Act not been passed; or
(ii) if later, the date on which the further appeal is disposed of or withdrawn.
(5) Otherwise, the application is not determined until the expiry of the period within which any party to the application would have been able to bring an appeal against the decision on the application had this Act not been passed.
16. Proceedings on an application for an order under section 4 of the RTPA are also continuing proceedings if--
(a) leave to make the application is applied for before the starting date but the proceedings in respect of that application for leave are not determined before that date; or
(b) leave to make an application for an order under that section is granted before the starting date but the application itself is not made before that date.
17. Proceedings on an application for an order under section 16 or 17 of the RPA are also continuing proceedings if--
(a) leave to make the application is applied for before the starting date but the proceedings in respect of that application for leave are not determined before that date; or
(b) leave to make an application for an order under section 16 or 17 of the RPA is granted before the starting date, but the application itself is not made before that date.
18.--(1) On an application made jointly to the Court by all the parties to any continuing proceedings, the Court must, if it is satisfied that the parties wish it to do so, discontinue the proceedings.
(2) If, on an application under sub-paragraph (1) or for any other reason, the Court orders the proceedings to be discontinued, this Schedule has effect (subject to paragraphs 21 and 22) from the date on which the proceedings are discontinued as if they had never been instituted.
19.--(1) Except where this Chapter or Chapter IV provides otherwise, there is a transitional period, beginning on the starting date and lasting for one year, for any agreement made before the starting date.
(2) The Chapter I prohibition does not apply to an agreement to the extent to which there is a transitional period for the agreement.
(3) The Secretary of State may by regulations provide for sections 13 to 16 and Schedule 5 to apply with such modifications (if any) as may be specified in the regulations, in respect of applications to the Director about agreements for which there is a transitional period.
20.--(1) There is no transitional period for an agreement to the extent to which, immediately before the starting date, it is--
(a) void under section 2(1) or 35(1)(a) of the RTPA;
(b) the subject of an order under section 2(2) or 35(3) of the RTPA; or
(c) unlawful under section 1, 2 or 11 of the RPA or void under section 9 of that Act.
(2) There is no transitional period for an agreement to the extent to which, before the starting date, a person has acted unlawfully for the purposes of section 27ZA(2) or (3) of the RTPA in respect of the agreement.
(3) There is no transitional period for an agreement to which paragraph 25(4) applies.
(4) There is no transitional period for--
(a) an agreement in respect of which there are continuing proceedings, or
(b) an agreement relating to goods in respect of which there are continuing proceedings,
to the extent to which the agreement is, when the proceedings are determined, void or unlawful.
21. In the case of an agreement which is the subject of continuing proceedings under the RTPA, the transitional period begins--
(a) if the proceedings are discontinued, on the date of discontinuance;
(b) otherwise, when the proceedings are determined.
22.--(1) In the case of an agreement relating to goods which are the subject of continuing proceedings under the RPA, the transitional period for the exempt provisions of the agreement begins--
(a) if the proceedings are discontinued, on the date of discontinuance;
(b) otherwise, when the proceedings are determined.
(2) In sub-paragraph (1) "exempt provisions" has the meaning given by paragraph 14(3).
23.--(1) To the extent to which an agreement contains provisions which, immediately before the starting date, are provisions which the Court has found not to be contrary to the public interest, the transitional period lasts for five years.
(2) Sub-paragraph (1) is subject to paragraph 20(4).
(3) To the extent to which an agreement which on the starting date is the subject of continuing proceedings is, when the proceedings are determined, found by the Court not to be contrary to the public interest, the transitional period lasts for five years.
24.--(1) In the case of an agreement relating to goods which, immediately before the starting date, are exempt under section 14 of the RPA, there is a transitional period for the agreement to the extent to which it consists of exempt provisions.
(2) Sub-paragraph (1) is subject to paragraph 20(4).
(3) In the case of an agreement relating to goods--
(a) which on the starting date are the subject of continuing proceedings, and
(b) which, when the proceedings are determined, are found to be exempt under section 14 of the RPA,
there is a transitional period for the agreement, to the extent to which it consists of exempt provisions.
(4) In each case, the transitional period lasts for five years.
(5) In sub-paragraphs (1) and (3) "exempt provisions" means those provisions of the agreement which would, disregarding section 14 of the RPA, be--
(a) void as a result of section 9(1) of the RPA; or
(b) unlawful as a result of section 9(2) or 11 of the RPA.
25.--(1) This paragraph applies to agreements--
(a) which are subject to registration under the RTPA but which--
(i) are not non-notifiable agreements within the meaning of section 27A of the RTPA, or
(ii) are not agreements to which paragraph 5 applies; and
(b) in respect of which the time for furnishing relevant particulars as required by or under the RTPA expires on or after the starting date.
(2) "Relevant particulars" means--
(a) particulars which are required to be furnished by virtue of section 24 of the RTPA; or
(b) particulars of any variation of an agreement which are required to be furnished by virtue of sections 24 and 27 of the RTPA.
(3) There is a transitional period of one year for an agreement to which this paragraph applies if--
(a) relevant particulars are furnished before the starting date; and
(b) no person has acted unlawfully (for the purposes of section 27ZA(2) or (3) of the RTPA) in respect of the agreement.
(4) If relevant particulars are not furnished by the starting date, section 35(1)(a) of the RTPA does not apply in relation to the agreement (unless sub-paragraph (5) applies).
(5) This sub-paragraph applies if a person falling within section 27ZA(2) or (3) of the RTPA has acted unlawfully for the purposes of those subsections in respect of the agreement.
26.--(1) In the case of an agreement in respect of which--
(a) a direction under section 127(2) of the Financial Services Act 1986 ("the 1986 Act") is in force immediately before the starting date, or
(b) a direction under section 194A(3) of the Broadcasting Act 1990 ("the 1990 Act") is in force immediately before the starting date,
the transitional period lasts for five years.
(2) To the extent to which an agreement is the subject of a declaration--
(a) made by the Treasury under section 127(3) of the 1986 Act, and
(b) in force immediately before the starting date,
the transitional period lasts for five years.
(3) Sub-paragraphs (1) and (2) do not affect the power of--
(a) the Treasury to make a declaration under section 127(2) of the 1986 Act (as amended by Schedule 2 to this Act),
(b) the Secretary of State to make a declaration under section 194A of the 1990 Act (as amended by Schedule 2 to this Act),
in respect of an agreement for which there is a transitional period.
27. In this Chapter "the relevant period" means the period beginning with the starting date and ending immediately before the fifth anniversary of that date.
28.--(1) For an agreement to which, immediately before the starting date, the RTPA does not apply by virtue of a section 100 order, there is a transitional period--
(a) beginning on the starting date, and
(b) ending at the end of the relevant period.
(2) For an agreement which is made at any time after the starting date and to which, had the RTPA not been repealed, that Act would not at the time at which the agreement is made have applied by virtue of a section 100 order, there is a transitional period--
(a) beginning on the date on which the agreement is made; and
(b) ending at the end of the relevant period.
(3) For an agreement (whether made before or after the starting date) which, during the relevant period, is varied at any time in such a way that it becomes an agreement which, had the RTPA not been repealed, would at that time have been one to which that Act did not apply by virtue of a section 100 order, there is a transitional period--
(a) beginning on the date on which the variation is made; and
(b) ending at the end of the relevant period.
(4) If an agreement for which there is a transitional period as a result of sub-paragraph (1), (2) or (3) is varied during the relevant period, the transitional period for the agreement continues if, had the RTPA not been repealed, the agreement would have continued to be one to which that Act did not apply by virtue of a section 100 order.
(5) But if an agreement for which there is a transitional period as a result of sub-paragraph (1), (2) or (3) ceases to be one to which, had it not been repealed, the RTPA would not have applied by virtue of a section 100 order, the transitional period ends on the date on which the agreement so ceases.
(6) Sub-paragraph (3) is subject to paragraph 20.
(7) In this paragraph and paragraph 29--
"section 100 order" means an order made under section 100 of the Electricity Act 1989; and
expressions which are also used in Part I of the Electricity Act 1989 have the same meaning as in that Part.
29.--(1) There is a transitional period for an agreement (whether made before or after the starting date) relating to the generation, transmission or supply of electricity which--
(a) is specified, or is of a description specified, in an order ("a transitional order") made by the Secretary of State (whether before or after the making of the agreement but before the end of the relevant period); and
(b) satisfies such conditions as may be specified in the order.
(2) A transitional order may make provision as to when the transitional period in respect of such an agreement is to start or to be deemed to have started.
(3) The transitional period for such an agreement ends at the end of the relevant period.
(4) But if the agreement--
(a) ceases to be one to which a transitional order applies, or
(b) ceases to satisfy one or more of the conditions specified in the transitional order,
the transitional period ends on the date on which the agreement so ceases.
(5) Before making a transitional order, the Secretary of State must consult the Director General of Electricity Supply and the Director.
(6) The conditions specified in a transitional order may include conditions which refer any matter to the Secretary of State for determination after such consultation as may be so specified.
(7) In the application of this paragraph to Northern Ireland, the reference in sub-paragraph (5) to the Director General of Electricity Supply is to be read as a reference to the Director General of Electricity Supply for Northern Ireland. Gas
30.--(1) For an agreement to which, immediately before the starting date, the RTPA does not apply by virtue of section 62 or a section 62 order, there is a transitional period--
(a) beginning on the starting date, and
(b) ending at the end of the relevant period.
(2) For an agreement which is made at any time after the starting date and to which, had the RTPA not been repealed, that Act would not at the time at which the agreement is made have applied by virtue of section 62 or a section 62 order, there is a transitional period--
(a) beginning on the date on which the agreement is made; and
(b) ending at the end of the relevant period.
(3) For an agreement (whether made before or after the starting date) which, during the relevant period, is varied at any time in such a way that it becomes an agreement which, had the RTPA not been repealed, would at that time have been one to which that Act did not apply by virtue of section 62 or a section 62 order, there is a transitional period--
(a) beginning on the date on which the variation is made; and
(b) ending at the end of the relevant period.
(4) If an agreement for which there is a transitional period as a result of sub-paragraph (1), (2) or (3) is varied during the relevant period, the transitional period for the agreement continues if, had the RTPA not been repealed, the agreement would have continued to be one to which that Act did not apply by virtue of section 62 or a section 62 order.
(5) But if an agreement for which there is a transitional period as a result of sub-paragraph (1), (2) or (3) ceases to be one to which, had it not been repealed, the RTPA would not have applied by virtue of section 62 or a section 62 order, the transitional period ends on the date on which the agreement so ceases.
(6) Sub-paragraph (3) also applies in relation to a modification which is treated as an agreement made on or after 28th November 1985 by virtue of section 62(4).
(7) Sub-paragraph (3) is subject to paragraph 20.
(8) In this paragraph and paragraph 31--
"section 62" means section 62 of the Gas Act 1986;
"section 62 order" means an order made under section 62.
31.--(1) There is a transitional period for an agreement of a description falling within section 62(2)(a) and (b) or section 62(2A)(a) and (b) which--
(a) is specified, or is of a description specified, in an order ("a transitional order") made by the Secretary of State (whether before or after the making of the agreement but before the end of the relevant period); and
(b) satisfies such conditions as may be specified in the order.
(2) A transitional order may make provision as to when the transitional period in respect of such an agreement is to start or to be deemed to have started.
(3) The transitional period for such an agreement ends at the end of the relevant period.
(4) But if the agreement--
(a) ceases to be one to which a transitional order applies, or
(b) ceases to satisfy one or more of the conditions specified in the transitional order,
the transitional period ends on the date when the agreement so ceases.
(5) Before making a transitional order, the Secretary of State must consult the Director General of Gas Supply and the Director.
(6) The conditions specified in a transitional order may include--
(a) conditions which are to be satisfied in relation to a time before the coming into force of this paragraph;
(b) conditions which refer any matter (which may be the general question whether the Chapter I prohibition should apply to a particular agreement) to the Secretary of State, the Director or the Director General of Gas Supply for determination after such consultation as may be so specified.
32.--(1) For an agreement to which, immediately before the starting date, the RTPA does not apply by virtue of an Article 41 order, there is a transitional period--
(a) beginning on the starting date, and
(b) ending at the end of the relevant period.
(2) For an agreement which is made at any time after the starting date and to which, had the RTPA not been repealed, that Act would not at the time at which the agreement is made have applied by virtue of an Article 41 order, there is a transitional period--
(a) beginning on the date on which the agreement is made; and
(b) ending at the end of the relevant period.
(3) For an agreement (whether made before or after the starting date) which, during the relevant period, is varied at any time in such a way that it becomes an agreement which, had the RTPA not been repealed, would at that time have been one to which that Act did not apply by virtue of an Article 41 order, there is a transitional period--
(a) beginning on the date on which the variation is made; and
(b) ending at the end of the relevant period.
(4) If an agreement for which there is a transitional period as a result of sub-paragraph (1), (2) or (3) is varied during the relevant period, the transitional period for the agreement continues if, had the RTPA not been repealed, the agreement would have continued to be one to which that Act did not apply by virtue of an Article 41 order.
(5) But if an agreement for which there is a transitional period as a result of sub-paragraph (1), (2) or (3) ceases to be one to which, had it not been repealed, the RTPA would not have applied by virtue of an Article 41 order, the transitional period ends on the date on which the agreement so ceases.
(6) Sub-paragraph (3) is subject to paragraph 20.
(7) In this paragraph and paragraph 33--
"Article 41 order" means an order under Article 41 of the Gas (Northern Ireland) Order 1996;
"Department" means the Department of Economic Development.
33.--(1) There is a transitional period for an agreement of a description falling within Article 41(1) which--
(a) is specified, or is of a description specified, in an order ("a transitional order") made by the Department (whether before or after the making of the agreement but before the end of the relevant period); and
(b) satisfies such conditions as may be specified in the order.
(2) A transitional order may make provision as to when the transitional period in respect of such an agreement is to start or to be deemed to have started.
(3) The transitional period for such an agreement ends at the end of the relevant period.
(4) But if the agreement--
(a) ceases to be one to which a transitional order applies, or
(b) ceases to satisfy one or more of the conditions specified in the transitional order,
the transitional period ends on the date when the agreement so ceases.
(5) Before making a transitional order, the Department must consult the Director General of Gas for Northern Ireland and the Director.
(6) The conditions specified in a transitional order may include conditions which refer any matter (which may be the general question whether the Chapter I prohibition should apply to a particular agreement) to the Department for determination after such consultation as may be so specified.
34.--(1) In this paragraph--
"section 131" means section 131 of the Railways Act 1993 ("the 1993 Act");
"section 131 agreement" means an agreement--
(i) to which the RTPA does not apply immediately before the starting date by virtue of section 131(1); or
(ii) in respect of which a direction under section 131(3) is in force immediately before that date;
"non-exempt agreement" means an agreement relating to the provision of railway services (whether made before or after the starting date) which is not a section 131 agreement; and
"railway services" has the meaning given by section 82 of the 1993 Act.
(2) For a section 131 agreement there is a transitional period of five years.
(3) There is a transitional period for a non-exempt agreement to the extent to which the agreement is at any time before the end of the relevant period required or approved--
(a) by the Secretary of State or the Rail Regulator in pursuance of any function assigned or transferred to him under or by virtue of any provision of the 1993 Act;
(b) by or under any agreement the making of which is required or approved by the Secretary of State or the Rail Regulator in the exercise of any such function; or
(c) by or under a licence granted under Part I of the 1993 Act.
(4) The transitional period conferred by sub-paragraph (3)--
(a) is to be taken to have begun on the starting date; and
(b) ends at the end of the relevant period.
(5) Sub-paragraph (3) is subject to paragraph 20.
(6) Any variation of a section 131 agreement on or after the starting date is to be treated, for the purposes of this paragraph, as a separate non-exempt agreement.
35.--(1) Subject to sub-paragraph (3), each of the regulators may exercise, in respect of sectoral matters and concurrently with the Director, the functions of the Director under paragraph 3, 7, 19(3), 36, 37, 38 or 39.
(2) In sub-paragraph (1) "sectoral matters" means--
(a) in the case of the Director General of Telecommunications, the matters referred to in section 50(3) of the Telecommunications Act 1984;
(b) in the case of the Director General of Gas Supply, the matters referred to in section 36A(3) and (4) of the Gas Act 1986;
(c) in the case of the Director General of Electricity Supply, the matters referred to in section 43(3) of the Electricity Act 1989;
(d) in the case of the Director General of Electricity Supply for Northern Ireland, the matters referred to in Article 46(3) of the Electricity (Northern Ireland) Order 1992;
(e) in the case of the Director General of Water Services, the matters referred to in section 31(3) of the Water Industry Act 1991;
(f) in the case of the Rail Regulator, the matters referred to in section 67(3) of the Railways Act 1993;
(g) in the case of the Director General of Gas for Northern Ireland, the matters referred to in Article 23(3) of the Gas (Northern Ireland) Order 1996.
(3) The power to give directions in paragraph 7(2) is exercisable by the Director only but if the Director is preparing directions which relate to a matter in respect of which a regulator exercises concurrent jurisdiction, he must consult that regulator.
(4) Consultations conducted by the Director before the enactment date, with a view to preparing directions which have effect on or after that date, are to be taken to satisfy sub-paragraph (3).
(5) References to enactments in sub-paragraph (2) are to the enactments as amended by or under this Act.
36.--(1) A party to an agreement for which there is a transitional period may apply to the Director, not less than three months before the end of the period, for the period to be extended.
(2) The Director may (on his own initiative or on an application under sub-paragraph (1))--
(a) extend a one-year transitional period by not more than twelve months;
(b) extend a transitional period of any period other than one year by not more than six months.
(3) An application under sub-paragraph (1) must--
(a) be in such form as may be specified; and
(b) include such documents and information as may be specified.
(4) If the Director extends the transitional period under this paragraph, he must give notice in such form, and to such persons, as may be specified.
(5) The Director may not extend a transitional period more than once.
(6) In this paragraph--
"person" has the same meaning as in Part I; and
"specified" means specified in rules made by the Director under section 51. Chapter VI
37.--(1) Subject to sub-paragraph (2), the Director may by a direction in writing terminate the transitional period for an agreement, but only in accordance with paragraph 38.
(2) The Director may not terminate the transitional period, nor exercise any of the powers in paragraph 38, in respect of an agreement which is excluded from the Chapter I prohibition by virtue of any of the provisions of Part I of this Act other than paragraph 1 of Schedule 1 or paragraph 2 or 9 of Schedule 3.
38.--(1) If the Director is considering whether to give a direction under paragraph 37 ("a direction"), he may in writing require any party to the agreement concerned to give him such information in connection with that agreement as he may require.
(2) If at the end of such period as may be specified in rules made under section 51, a person has failed, without reasonable excuse, to comply with a requirement imposed under sub-paragraph (1), the Director may give a direction.
(3) The Director may also give a direction if he considers--
(a) that the agreement would, but for the transitional period or a relevant exclusion, infringe the Chapter I prohibition; and
(b) that he would not be likely to grant the agreement an unconditional individual exemption.
(4) For the purposes of sub-paragraph (3) an individual exemption is unconditional if no conditions or obligations are imposed in respect of it under section 4(3)(a).
(5) In this paragraph--
"person" has the same meaning as in Part I;
"relevant exclusion" means an exclusion under paragraph 1 of Schedule 1 or paragraph 2 or 9 of Schedule 3.
39.--(1) The Director must specify in a direction under paragraph 37 ("a direction") the date on which it is to have effect (which must not be less than 28 days after the direction is given).
(2) Copies of the direction must be given to--
(a) each of the parties concerned, and
(b) the Secretary of State,
not less than 28 days before the date on which the direction is to have effect.
(3) In relation to an agreement to which a direction applies, the transitional period (if it has not already ended) ends on the date specified in the direction unless, before that date, the direction is revoked by the Director or the Secretary of State.
(4) If a direction is revoked, the Director may give a further direction in respect of the same agreement only if he is satisfied that there has been a material change of circumstance since the revocation.
(5) If, as a result of paragraph 24(1) or (3), there is a transitional period in respect of provisions of an agreement relating to goods--
(a) which immediately before the starting date are exempt under section 14 of the RPA, or
(b) which, when continuing proceedings are determined, are found to be exempt under section 14 of the RPA,
the period is not affected by paragraph 37 or 38.
40.--(1) If, on the date on which the repeal by this Act of a provision mentioned in sub-paragraph (2) comes into force, the Monopolies and Mergers Commission has not completed a reference which was made to it before that date, continued consideration of the reference may include consideration of a question which could not have been considered if the provision had not been repealed.
(2) The provisions are--
(a) sections 10(2), 54(5) and 78(3) and paragraph 3(1) and (2) of Schedule 8 to the Fair Trading Act 1973 (c. 41),
(b) section 11(8)(b) of the Competition Act 1980 (c. 21),
(c) section 14(2) of the Telecommunications Act 1984 (c. 12),
(d) section 45(3) of the Airports Act 1986 (c. 31),
(e) section 25(2) of the Gas Act 1986 (c. 44),
(f) section 13(2) of the Electricity Act 1989 (c. 29),
(g) section 15(2) of the Water Industry Act 1991 (c. 56),
(h) article 16(2) of the Electricity (Northern Ireland) Order 1992,
(i) section 14(2) of the Railways Act 1993 (c. 43),
(j) article 36(3) of the Airports (Northern Ireland) Order 1994;
(k) article 16(2) of the Gas (Northern Ireland) Order 1996.
41.--(1) In this paragraph--
"the 1973 Act" means the Fair Trading Act 1973;
"agreement" means an agreement entered into before the date on which the repeal of the limiting provisions comes into force;
"the order" means an order under section 56 or 73 of the 1973 Act;
"the limiting provisions" means sub-paragraph (1) or (2) of paragraph 3 of Schedule 8 to the 1973 Act (limit on power to make orders under paragraph 1 or 2 of that Schedule) and includes any provision of the order included because of either of those sub-paragraphs; and
"transitional period" means the period which--
(a) begins on the day on which the repeal of the limiting provisions comes into force; and
(b) ends on the first anniversary of the starting date.
(2) Sub-paragraph (3) applies to any agreement to the extent to which it would have been unlawful (in accordance with the provisions of the order) but for the limiting provisions.
(3) As from the end of the transitional period, the order is to have effect in relation to the agreement as if the limiting provisions had never had effect. Part III of the Act
42.--(1) The repeals made by section 1 do not affect any proceedings in respect of an application which is made to the Court under Part III of the Fair Trading Act 1973, but is not determined, before the starting date.
(2) The question whether (for the purposes of sub-paragraph (1)) an application has been determined is to be decided in accordance with sub-paragraphs (3) and (4).
(3) If an appeal against the decision on the application is brought, the application is not determined until--
(a) the appeal is disposed of or withdrawn; or
(b) if as a result of the appeal the case is referred back to the Court--
(i) the expiry of the period within which an appeal ("the further appeal") in respect of the Court's decision on that reference could have been brought had this Act not been passed; or
(ii) if later, the date on which the further appeal is disposed of or withdrawn.
(4) Otherwise, the application is not determined until the expiry of the period within which any party to the application would have been able to bring an appeal against the decision on the application had this Act not been passed.
(5) Any amendment made by Schedule 12 to this Act which substitutes references to a relevant Court for references to the Court is not to affect proceedings of the kind referred to in sub-paragraph (1).
43.--(1) Subject to sub-paragraph (2), an undertaking accepted by the Director under section 4 or 9 of the Competition Act 1980 ceases to have effect on the coming into force of the repeal by this Act of that section.
(2) If the undertaking relates to an agreement which on the starting date is the subject of continuing proceedings, the undertaking continues to have effect for the purposes of section 29 of the Competition Act 1980 until the proceedings are determined.
44. The repeals made by section 1 do not affect--
(a) the operation of section 25 of the Competition Act 1980 in relation to an application under section 1(3) of the RTPA which is made before the starting date;
(b) an application under section 26 of the Competition Act 1980 which is made before the starting date.
45.--(1) Section 55 of this Act applies in relation to information which, immediately before the starting date, is subject to section 41 of the RTPA as it applies in relation to information obtained under or as a result of Part I.
(2) But section 55 does not apply to any disclosure of information of the kind referred to in sub-paragraph (1) if the disclosure is made--
(a) for the purpose of facilitating the performance of functions of a designated person under the Control of Misleading Advertisements Regulations 1988; or
(b) for the purposes of any proceedings before the Court or of any other legal proceedings under the RTPA or the Fair Trading Act 1973 or the Control of Misleading Advertisements Regulations 1988.
(3) Section 56 applies in relation to information of the kind referred to in sub-paragraph (1) if particulars containing the information have been entered or filed on the special section of the register maintained by the Director under, or as a result of, section 27 of the RTPA or paragraph 10 of this Schedule.
(4) Section 55 has effect, in relation to the matters as to which section 41(2) of the RTPA had effect, as if it contained a provision similar to section 41(2).
46. If it appears to the Lord Chancellor that a person who ceases to be a non-judicial member of the Court as a result of this Act should receive compensation for loss of office, he may pay to him out of moneys provided by Parliament such sum as he may with the approval of the Treasury determine.").
105
Leave out Schedule 13.
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