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"(1A) In section 3(4)(b) (excluded agreements), for "the Fair Trading Act 1973" there is substituted "the Enterprise Act 2002"."
Page 371, line 24, after "(regulators)" insert "
(a) in subsection (1), for the words from "any person" to the end of the subsection there is substituted "
(a) the Director General of Telecommunications;
(b) the Gas and Electricity Markets Authority;
(c) the Director General of Electricity Supply for Northern Ireland;
(d) the Director General of Water Services;
(e) the Rail Regulator;
(f) the Director General of Gas for Northern Ireland; and
(g) the Civil Aviation Authority.";
(b)"
Page 373, line 27, leave out from "enterprises" to end of line 35 and insert "of the kind to which that section applies"
Page 376, line 29, at end insert ";
(b) after paragraph 2 there is inserted
"Investigations under section 162: application of Enterprise Act 2002
2A (1) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in sub-paragraphs (2) and (3), for the purposes of any investigation by the Commission under section 162 of this Act as they apply for the purposes of references under that Part
(a) section 106 (attendance of witnesses and production of documents etc.);
(b) section 107 (enforcement of powers under section 106: general);
(c) section 108 (penalties);
(d) section 109 (penalties: main procedural requirements);
(e) section 110 (payments and interest by instalments);
(f) section 111 (appeals in relation to penalties);
(g) section 112 (recovery of penalties); and
(h) section 113 (statement of policy).
(2) Section 107 shall, in its application by virtue of sub-paragraph (1), have effect as if
(a) subsection (2) were omitted; and
(b) in subsection (9) the words from "or section" to "section 64(3))" were omitted.
(3) Section 108(5)(b) shall, in its application by virtue of sub-paragraph (1), have effect as if for sub-paragraph (ii) there were substituted
"(ii) if earlier, the day on which the report of the Commission on the investigation concerned is made or, if the Commission decides not to make a report, the day on which the Commission makes the statement required by section 162(3) of the Financial Services and Markets Act 2000."
(4) Section 114 of the Enterprise Act 2002 (false or misleading information) shall apply in relation to functions of the Commission in connection with an investigation under section 162 of this Act as it applies in relation to its functions under Part 3 of that Act but as if, in subsections (1)(a) and (2), the words "the OFT," and "or the Secretary of State" were omitted.
(5) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 106 to 114 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of sub-paragraph (1) or (4) above, have effect in relation to those sections as applied by virtue of those sub-paragraphs.
(6) Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of those sub-paragraphs.
Section 162: modification of Schedule 7 to the Competition Act 1998
2B For the purposes of its application in relation to the function of the Commission of deciding in accordance with section 162(2) of this Act not to make a report, paragraph 15(7) of Schedule 7 to the Competition Act 1998 (power of the Chairman to act on his own while a group is being constituted) has effect as if, after paragraph (a), there were inserted "; or
(aa) in the case of an investigation under section 162 of the Financial Services and Markets Act 2000, decide not to make a report in accordance with subsection (2) of that section (decision not to make a report where no useful purpose would be served)."
Reports under section 162: further provision
2C (1) For the purposes of section 163 of this Act, a conclusion contained in a report of the Commission is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted in connection with the investigation concerned in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998.
(2) If a member of a group so constituted disagrees with any conclusions contained in a report made under section 162 of this Act as the conclusions of the Commission, the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing.
(3) For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Commission under section 162.";
(c) paragraph 3 (applied provisions) shall cease to have effect."
Page 376, line 43, at end insert
"(1A) After section 15 (licence modification references to Commission) there is inserted
"15A REFERENCES UNDER SECTION 15: TIME LIMITS
(1) Every reference under section 15 shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made.
(2) A report of the Competition Commission on a reference under section 15 shall not have effect (and no action shall be taken in relation to it under section 17) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by the Commission under subsection (3).
(3) The Commission may, if it has received representations on the subject from the Competition Commission and is satisfied that there are special reasons why the report cannot be made within the period specified in the reference, extend that period by no more than six months.
(4) No more than one extension is possible under subsection (3) in relation to the same reference.
(5) The Commission shall, in the case of an extension made by it under subsection (3)
(a) publish that extension in such manner as it considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it; and
(b) send a copy of what has been published by it under paragraph (a) to the licence holder and the Secretary of State.
15B REFERENCES UNDER SECTION 15: APPLICATION OF ENTERPRISE ACT 2002
(1) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (2) and (3), for the purposes of references under section 15 as they apply for the purposes of references under that Part
(a) section 106 (attendance of witnesses and production of documents etc.);
(b) section 107 (enforcement of powers under section 106: general);
(c) section 108 (penalties);
(d) section 109 (penalties: main procedural requirements);
(e) section 110 (payments and interest by instalments);
(f) section 111 (appeals in relation to penalties);
(g) section 112 (recovery of penalties); and
(h) section 113 (statement of policy).
(2) Section 107 shall, in its application by virtue of subsection (1), have effect as if
(a) subsection (2) were omitted; and
(b) in subsection (9) the words from "or section" to "section 64(3))" were omitted.
(3) Section 108(5)(b)(ii) shall, in its application by virtue of subsection (1), have effect as if
(a) for the words "published (or, in the case of a report under section 49 or 64, given)" there were substituted "made";
(b) for the words "published (or given)", in both places where they appear, there were substituted "made"; and
(c) the words "by this Part" were omitted.
(4) Section 114 of the Enterprise Act 2002 (false or misleading information) shall apply in relation to functions of the Competition Commission in connection with references under section 15 as it applies in relation to its functions under Part 3 of that Act but as if, in subsections (1)(a) and (2), the words "the OFT," and "or the Secretary of State" were omitted.
(5) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 106 to 114 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of subsection (1) or (4), have effect in relation to those sections as applied by virtue of those subsections.
(6) Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of those subsections."
(1B) After section 16 (reports on licence modification references), there is inserted
"16A REPORTS ON REFERENCES UNDER SECTION 15: FURTHER PROVISION
(1) For the purposes of sections 17 and 18, a conclusion contained in a report of the Competition Commission is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted in connection with the reference concerned in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998.
(2) If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference under section 15 as the conclusions of the Competition Commission, the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing.
(3) For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Competition Commission on a reference under section 15.
(4) In making any report on a reference under section 15 the Competition Commission must have regard to the following considerations before disclosing any information.
(5) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Competition Commission thinks is contrary to the public interest
(6) The second consideration is the need to exclude from disclosure (so far as practicable)
(a) commercial information whose disclosure the Competition Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or
(b) information relating to the private affairs of an individual whose disclosure the Competition Commission thinks might significantly harm the individual's interests.
(7) The third consideration is the extent to which the disclosure of the information mentioned in subsection (6)(a) or (b) is necessary for the purposes of the report."
(1C) After section 19 (procedural requirements in relation to modification) there is inserted
"19A SECTIONS 18 AND 19: FURTHER PROVISION
(1) For the purposes of the law relating to defamation, absolute privilege attaches to any notice under section 19(6) or (8).
(2) In giving any notice under section 19(6) or (8), the Competition Commission must have regard to the following considerations before disclosing any information.
(3) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Competition Commission thinks is contrary to the public interest.
(4) The second consideration is the need to exclude from disclosure (so far as practicable)
(a) commercial information whose disclosure the Competition Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or
(b) information relating to the private affairs of an individual whose disclosure the Competition Commission thinks might significantly harm the individual's interests.
(5) The third consideration is the extent to which the disclosure of the information mentioned in subsection (4)(a) or (b) is necessary for the purposes of the notice.
(6) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (7) and (8), in relation to any investigation by the Competition Commission for the purposes of the exercise of its functions under section 18 as they apply for the purposes of any investigation on references under that Part
(a) section 106 (attendance of witnesses and production of documents etc.);
(b) section 107 (enforcement of powers under section 106: general);
(c) section 108 (penalties);
(d) section 109 (penalties: main procedural requirements);
(e) section 110 (payments and interest by instalments);
(f) section 111 (appeals in relation to penalties);
(g) section 112 (recovery of penalties); and
(h) section 113 (statement of policy).
(7) Section 107 shall, in its application by virtue of subsection (6), have effect as if
(a) subsection (2) were omitted;
(b) in subsection (4), for the words from "the publication" to "reference concerned" there were substituted "the sending of a copy to the Secretary of State under section 19(11) of the Postal Services Act 2000 of the modifications made by the Competition Commission in connection with the reference concerned or, if no direction has been given by the Competition Commission under section 18(2) of that Act in connection with the reference concerned and within the period permitted for that purpose, the latest day on which it was possible to give such a direction within the permitted period"; and
(c) in subsection (9) the words from "or section" to "section 64(3))" were omitted.
(8) Section 108(5)(b) shall, in its application by virtue of subsection (6), have effect as if for sub-paragraph (ii) there were substituted
"(ii) if earlier, the day on which a copy of the modifications made by the Competition Commission in connection with the reference concerned is sent to the Secretary of State under section 19(11) of the Postal Services Act 2000 or, if no direction is given by the Competition Commission under section 18(2) of that Act in connection with the reference concerned and within the period permitted for that purpose, the latest day on which such a direction may be given within the permitted period.".
(9) Section 114 of the Enterprise Act 2002 (false or misleading information) shall apply in relation to functions of the Competition Commission in connection with the exercise of its functions under section 18 as it applies in relation to its functions under Part 3 of that Act but as if, in subsections (1)(a) and (2), the words "the OFT," and "or the Secretary of State" were omitted.
(10) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 106 to 114 of that Act (including, in particular, provisions relating to offences and the making of
orders) shall, for the purposes of the application of those sections by virtue of subsection (6) or (9), have effect in relation to those sections as applied by virtue of those subsections.
(11) Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of those subsections."
(1D) Section 20 (application of competition legislation to references, etc.) shall cease to have effect."
Page 377, line 10, at end insert
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