Competition Act 1998

• (b) as to the steps which must be taken before a competent person exercises, in a particular case, such Part I functions as may be prescribed;

• (c) as to the procedure for determining, in a particular case, questions arising as to which competent person is to exercise Part I functions in respect of the case;

• (d) for Part I functions in a particular case to be exercised jointly—

• (i) by the CMA and one or more regulators, or

• (ii) by two or more regulators,

and as to the procedure to be followed in such cases;

• (e) as to the circumstances in which the exercise by a competent person of such Part I functions as may be prescribed is to preclude the exercise of such functions by another such person;

• (f) for cases in respect of which Part I functions are being, or have been, exercised by a competent person to be transferred to another such person;

• (g) for the person (“A”) exercising Part I functions in a particular case—

• (i) to appoint another competent person (“B”) to exercise Part I functions on A’s behalf in relation to the case; or

• (ii) to appoint officers of B (with B’s consent) to act as officers of A in relation to the case;

• (h) for notification as to who is exercising Part I functions in respect of a particular case.

• (6) Provision made by virtue of subsection (5)(c) may provide for questions to be referred to and determined by the Secretary of State , the CMA or by such other person as may —

• (a) prescribe circumstances in which the CMA may decide that, in a particular case, it is to exercise Part 1 functions in respect of the case rather than a regulator;

• (b) be prescribed.

• (6A) Where the regulations make provision as mentioned in subsection (6)(a), they must—

• (a) include provision requiring the CMA to consult the regulator concerned before making a decision that the CMA is to exercise Part 1 functions in respect of a particular case, and

• (b) provide that, in a case where a regulator has given notice under section 31(1) that it proposes to make a decision (within the meaning given by section 31(2)), the CMA may only decide that it is to exercise Part 1 functions in respect of the case rather than the regulator if the regulator consents.

• (6B) The Secretary of State may by regulations make provision requiring arrangements to be made for the sharing of information between competent persons in connection with concurrent cases.

• (6C) For the purposes of subsection (6B), “a concurrent case” is a case in respect of which—

• (a) the CMA considers that Part 1 functions are, or (but for provision made under subsection (5)(e)) would be, exercisable by both it and any regulator;

• (b) any regulator considers that Part 1 functions are, or (but for provision made under subsection (5)(e)) would be, exercisable by it.

• (7) “Competent person” means the CMA or any of the regulators.

• (8) In this section, “subordinate legislation” has the same meaning as in section 21(1) of the Interpretation Act 1978 (c 30) and includes an instrument made under—

• (a) an Act of the Scottish Parliament;

• (b) Northern Ireland legislation.

Confidentiality and immunity from defamation

General restrictions on disclosure of information

55

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Director and Secretary of State to have regard to certain matters in relation to the disclosure of information

56

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Defamation

57

For the purposes of the law relating to defamation, absolute privilege attaches to any advice, guidance, notice or direction given, or decision made, by the CMA in the exercise of any of its functions under this Part.

Findings of fact by CMA

Findings of fact by Director

58

• (1) Unless the court or the Tribunal directs otherwise or the OFT has decided to take further action in accordance with section 16(2) or 24(2), CMA's finding which is relevant to an issue arising in Part I proceedings is binding on the parties if—

• (a) the time for bringing an appeal under section 46 or 47 in respect of the finding has expired and the relevant party has not brought such an appeal; or

• (b) the decision of the Tribunal on such an appeal has confirmed the finding.

• (2) In this section—

• “a CMA's finding” means a finding of fact made by the CMA in the course of conducting an investigation;

• “Part 1 proceedings” means proceedings brought otherwise than by the CMA— in respect of an infringement decision; orin respect of an alleged infringement of the Chapter I prohibition or of the Chapter II prohibition; ......

• “relevant party” means—in relation to the Chapter I prohibition ..., a party to the agreement which has been found to have infringed the prohibition or is alleged to have infringed the prohibition (as the case may be); andin relation to the Chapter II prohibition ..., the undertaking whose conduct has been found to have infringed the prohibition or is alleged to have infringed the prohibition (as the case may be).

• (3) Rules of court or Tribunal rules may make provision in respect of assistance to be given by the CMA to the court or the Tribunal in Part I proceedings.

• (4) In this section “the court” means—

• (a) in England and Wales or Northern Ireland, the High Court,

• (b) in Scotland, the Court of Session or the sheriff.

Interpretation and governing principles

Interpretation

59

• (1) In this Part—

• "agreement" is to be read with section 2(5) and (6);

• ...

• ...

• ...

• ...

• “block exemption” has the meaning given in section 6(4);

• “block exemption order” has the meaning given in section 6(2);

• “the Chapter I prohibition” has the meaning given in section 2(8);

• “the Chapter II prohibition” has the meaning given in section 18(4);

• “class member” has the meaning given in section 47B(8)(a);

• “the CMA” means the Competition and Markets Authority;

• “collective proceedings” has the meaning given in section 47B(1);

• “collective proceedings order” means an order made by the Tribunal authorising the continuance of collective proceedings;

• ...

• ...

• “the court”, except in sections 49E, 58, 58A and 60A and Schedule 8A and the expression “European Court”, means—in England and Wales, the High Court;in Scotland, the Court of Session; andin Northern Ireland, the High Court;

• ...

• “document” includes information recorded in any form;

• ...

• ...

• ...

• “individual exemption” has the meaning given in section 4(2);

• “information” includes estimates and forecasts;

• “infringement decision”, except in section 49C, has the meaning given in section 47A(6);

• “injunction” includes an interim injunction;

• “investigating officer” has the meaning given in section 27(1);

• “investigation” means an investigation under section 25;

• “Minister of the Crown” has the same meaning as in the Ministers of the Crown Act 1975;

• “OFCOM” means the Office of Communications;

• “officer”, in relation to a body corporate, includes a director, manager or secretary and, in relation to a partnership in Scotland, includes a partner;

• “opt-in collective proceedings” has the meaning given in section 47B(10);

• “opt-out collective proceedings” has the meaning given in section 47B(11);

• ...

• ...

• “person”, in addition to the meaning given by the Interpretation Act 1978, includes any undertaking;

• “premises” includes any land or means of transport;

• “prescribed” means prescribed by regulations made by the Secretary of State;

• “regulator” has the meaning given by section 54;

• “representative” means a person who is authorised by a collective proceedings order to bring collective proceedings;

• “represented person” means a class member who—has opted in to opt-in collective proceedings,was domiciled in the United Kingdom at the time specified for the purposes of determining domicile (see section 47B(11)(b)(i)) and has not opted out of opt-out collective proceedings, orhas opted in to opt-out collective proceedings;

• “assimilated block exemption regulation” has the meaning given in section 10(12);

• “assimilated exemption” has the meaning given in section 10(3);

• ...

• ...

• “the Tribunal” means the Competition Appeal Tribunal;

• “Tribunal rules” means rules under section 15 of the Enterprise Act 2002.

• “working day” means a day which is not—Saturday,Sunday,Christmas Day,Good Friday, ora day which is a bank holiday under the Banking and Financial Dealings Act 1971 (c. 80) in any part of the United Kingdom.

• (1A) In this Part, in respect of proceedings in Scotland, “claimant” is to be read as “pursuer” and “defendant” is to be read as “defender”.

• (1B) Sections 41, 42, 45 and 46 of the Civil Jurisdiction and Judgments Act 1982 apply for the purpose of determining whether a person is regarded as “domiciled in the United Kingdom” for the purposes of this Part.

• (2) 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.

• (3) For the purposes of this Part, the power to require information, in relation to information recorded otherwise than in a legible form, includes power to require a copy of it in a legible form.

• (4) Any power conferred on the CMA by this Part to require information includes power to require any document which it believes may contain that information.

Principles to be applied in determining questions

60

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part II — Inspections under Articles 20, 21 and 22(2)

Introduction

61

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Power to enter premises: Commission investigations

62

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Power to enter premises: Director’s special investigations

63

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Entry of premises under sections 62 and 63: supplementary

64

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Offences

65

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part III — Monopolies

Monopoly investigations: general

66

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Offences

67

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Services relating to use of land

68

In section 137 of the Fair Trading Act 1973, after subsection (3) insert—

(3A) The Secretary of State may by order made by statutory instrument— (a) provide that “the supply of services” in the provisions of this Act is to include, or to cease to include, any activity specified in the order which consists in, or in making arrangements in connection with, permitting the use of land; and (b) for that purpose, amend or repeal any of paragraphs (c), (d), (e) or (g) of subsection (3) above. (3B) No order under subsection (3A) above is to be made unless a draft of the order has been laid before Parliament and approved by a resolution of each House of Parliament. (3C) The provisions of Schedule 9 to this Act apply in the case of a draft of any such order as they apply in the case of a draft of an order to which section 91(1) above applies.

Reports: monopoly references

69

In section 83 of the Fair Trading Act 1973—

• (a) in subsection (1), omit “Subject to subsection (1A) below”; and

• (b) omit subsection (1A) (reports on monopoly references to be transmitted to certain persons at least twenty-four hours before laying before Parliament).

Part IV — Supplemental and Transitional

Contracts as to patented products etc

70

Sections 44 and 45 of the Patents Act 1977 shall cease to have effect.

Regulations, orders and rules

71

• (1) Any power to make regulations or orders which is conferred by this Act is exercisable by statutory instrument.

• (2) The power to make rules which is conferred by section 48 is exercisable by statutory instrument.

• (3) Any statutory instrument made under this Act may—

• (a) contain such incidental, supplemental, consequential and transitional provision as the Secretary of State considers appropriate; and

• (b) make different provision for different cases.

• (4) An order made under—

• (a) section 3,

• (b) section 19,

• (c) section 36(8),

• (ca) section 45(8),

• (cb) section 47C(7),

• (d) section 50, or

• (e) paragraph 6(3) of Schedule 4,

is subject to the affirmative procedure.

• (4A) Regulations made under section 35B(7) or 40A(7A) are subject to the affirmative procedure.

• (5) Any statutory instrument made under this Act, apart from one made—

• (a) under any of the provisions mentioned in subsection (4) or (4A), or

• (b) under section 76(3),

is subject to the negative procedure.

• (6) Any provision that may be made by order or regulations under this Act subject to the negative procedure may instead be made by order or regulations subject to the affirmative procedure.

• (7) Where orders or regulations under this Act are subject to “the affirmative procedure”, the orders or regulations may not be made unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, each House of Parliament.

• (8) Where orders or regulations under this Act are subject to “the negative procedure”, the statutory instrument containing them is subject to annulment in pursuance of a resolution of either House of Parliament.

Offences by bodies corporate etc

72

• (1) This section applies to an offence under any of sections 42 to 44 ....

• (2) If an offence committed by a body corporate is proved—

• (a) to have been committed with the consent or connivance of an officer, or

• (b) to be attributable to any neglect on his part,

the officer as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.

• (3) In subsection (2) “officer”, in relation to a body corporate, means a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity.

• (4) If the affairs of a body corporate are managed by its members, subsection (2) applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

• (5) If an offence committed by a partnership in Scotland is proved—

• (a) to have been committed with the consent or connivance of a partner, or

• (b) to be attributable to any neglect on his part,

the partner as well as the partnership is guilty of the offence and liable to be proceeded against and punished accordingly.

• (6) In subsection (5) “partner” includes a person purporting to act as a partner.

Crown application

73

• (1) Any provision made by or under this Act binds the Crown except that—

• (a) the Crown is not criminally liable as a result of any such provision;

• (b) the Crown is not liable for any penalty under any such provision; and

• (c) nothing in this Act affects Her Majesty in her private capacity.

• (2) Subsection (1)(a) does not affect the application of any provision of this Act in relation to persons in the public service of the Crown.

• (3) Subsection (1)(c) is to be interpreted as if section 38(3) of the Crown Proceedings Act 1947 (interpretation of references in that Act to Her Majesty in her private capacity) were contained in this Act.

• (4) If an investigation is conducted under section 25 ... in respect of an agreement where none of the parties is the Crown or a person in the public service of the Crown, or in respect of conduct otherwise than by the Crown or such a person—

• (a) the power conferred by section 27 ... may not be exercised in relation to land which is occupied by a government department, or otherwise for purposes of the Crown, without the written consent of the appropriate person; and

• (b) sections 28 and 28A do not apply in relation to land so occupied.

• (5) In any case in which consent is required under subsection (4), the person who is the appropriate person in relation to that case is to be determined in accordance with regulations made by the Secretary of State.

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (6A) In subsection (4) “agreement” includes a suspected agreement and is to be read as applying equally to, or in relation to, a decision by an association of undertakings or a concerted practice; and “conduct” includes suspected conduct.

• (7) In subsection (6) “infringement” means an infringement of EU law relating to Article 85 or 86 of the Treaty establishing the European Community.

• (8) If the Secretary of State certifies that it appears to him to be in the interests of national security that the powers of entry—

• (a) conferred by section 27 ..., or

• (b) that may be conferred by a warrant under section 28 or 28A,

should not be exercisable in relation to premises held or used by or on behalf of the Crown and which are specified in the certificate, those powers are not exercisable in relation to those premises.

• (9) Any amendment, repeal or revocation made by this Act binds the Crown to the extent that the enactment amended, repealed or revoked binds the Crown.

Amendments, transitional provisions, savings and repeals

74

• (1) The minor and consequential amendments set out in Schedule 12 are to have effect.

• (2) The transitional provisions and savings set out in Schedule 13 are to have effect.

• (3) The enactments set out in Schedule 14 are repealed.

Consequential and supplementary provision

75

• (1) The Secretary of State may by order make such incidental, consequential, transitional or supplemental provision as he thinks necessary or expedient for the general purposes, or any particular purpose, of this Act or in consequence of any of its provisions or for giving full effect to it.

• (2) An order under subsection (1) may, in particular, make provision—

• (a) for enabling any person by whom any powers will become exercisable, on a date specified by or under this Act, by virtue of any provision made by or under this Act to take before that date any steps which are necessary as a preliminary to the exercise of those powers;

• (b) for making savings, or additional savings, from the effect of any repeal made by or under this Act.

• (3) Amendments made under this section shall be in addition, and without prejudice, to those made by or under any other provision of this Act.

• (4) No other provision of this Act restricts the powers conferred by this section.

Short title, commencement and extent

76

• (1) This Act may be cited as the Competition Act 1998.

• (2) Sections 71 and 75 and this section and paragraphs 1 to 7 and 35 of Schedule 13 come into force on the passing of this Act.

• (3) The other provisions of this Act come into force on such day as the Secretary of State may by order appoint; and different days may be appointed for different purposes.

• (4) This Act extends to Northern Ireland.

SCHEDULE 1

Part I — Mergers

Enterprises ceasing to be distinct: the Chapter I prohibition

1

• (1) To the extent to which an agreement (either on its own or when taken together with another agreement) results, or if carried out would result, in any two enterprises ceasing to be distinct enterprises for the purposes of Part V of the Fair Trading Act 1973 (“the 1973 Act”) Part 3 of the Enterprise Act 2002 (“the 2002 Act”), the Chapter I prohibition does not apply to the agreement.

• (2) The exclusion provided by sub-paragraph (1) extends to any provision directly related and necessary to the implementation of the merger provisions.

• (3) In sub-paragraph (2) “merger provisions” means the provisions of the agreement which cause, or if carried out would cause, the agreement to have the result mentioned in sub-paragraph (1).

• (4) Section 65 of the 1973 Act Section 26 of the 2002 Act applies for the purposes of this paragraph as if—

• (a) in subsection (3) (circumstances in which a person or group of persons may be treated as having control of an enterprise), and

• (b) in subsection (4) (circumstances in which a person or group of persons may be treated as bringing an enterprise under their control),

for “may” there were substituted “ must ”.

Enterprises ceasing to be distinct: the Chapter II prohibition

2

• (1) To the extent to which conduct (either on its own or when taken together with other conduct)—

• (a) results in any two enterprises ceasing to be distinct enterprises for the purposes of Part V of the 1973 Act Part 3 of the 2002 Act), or

• (b) is directly related and necessary to the attainment of the result mentioned in paragraph (a),

the Chapter II prohibition does not apply to that conduct.

• (2) Section 65 of the 1973 Act Section 26 of the 2002 Act applies for the purposes of this paragraph as it applies for the purposes of paragraph 1.

Transfer of a newspaper or of newspaper assets

3

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Withdrawal of the paragraph 1 exclusion

4

• (1) The exclusion provided by paragraph 1 does not apply to a particular agreement if the CMA gives a direction under this paragraph to that effect.

• (2) If the CMA is considering whether to give a direction under this paragraph, it may by notice in writing require any party to the agreement in question to give the CMA such information in connection with the agreement as it may require.

• (3) The CMA may give a direction under this paragraph only as provided in sub-paragraph (4) or (5).

• (4) If at the end of such period as may be specified in rules under section 51 a person has failed, without reasonable excuse, to comply with a requirement imposed under sub-paragraph (2), the CMA may give a direction under this paragraph.

• (5) The CMA may also give a direction under this paragraph if—

• (a) it considers that the agreement will, if not excluded, infringe the Chapter I prohibition; and

• (b) the agreement is not a protected agreement.

• (6) For the purposes of sub-paragraph (5), an individual exemption is unconditional if no conditions or obligations are imposed in respect of it under section 4(3)(a).

• (7) A direction under this paragraph—

• (a) must be in writing;

• (b) may be made so as to have effect from a date specified in the direction (which may not be earlier than the date on which it is given).

Protected agreements

5

An agreement is a protected agreement for the purposes of paragraph 4 if—

• (a) the CMA or (as the case may be) the Secretary of State has published its or his decision not to make a reference ... under section 22, 33, 45 or 62 of the 2002 Act in connection with the agreement;

• (b) the CMA or (as the case may be) the Secretary of State has made a reference ... under section 22, 33, 45 or 62 of the 2002 Act in connection with the agreement and the CMA has found that the agreement has given rise to, or would if carried out give rise to, a relevant merger situation or (as the case may be) a special merger situation;

• (c) the agreement does not fall within paragraph (a) or (b) but has given rise to, or would if carried out give rise to, enterprises to which it relates being regarded under section 26 of the 2002 Act as ceasing to be distinct enterprises (otherwise than as the result of subsection (3) or (4)(b) of that section); or

• (d) the CMA has made a reference ... under section 32 of the Water Industry Act 1991 in connection with the agreement and the CMA has found that the agreement has given rise to, or would if carried out give rise to, a merger of any two or more water enterprises of the kind to which that section applies.

Part II — Concentrations subject to EC controls

6

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

SCHEDULE 2

Part I — Financial Services

The Financial Services Act 1986 (c. 60)

1

• (1) The Financial Services Act 1986 is amended as follows.

• (2) For section 125 (effect of the Restrictive Trade Practices Act 1976), substitute—

(125) (1) The Chapter I prohibition does not apply to an agreement for the constitution of— (a) a recognised self-regulating organisation, (b) a recognised investment exchange, or (c) a recognised clearing house, to the extent to which the agreement relates to the regulating provisions of the body concerned. (2) Subject to subsection (3) below, the Chapter I prohibition does not apply to an agreement for the constitution of— (a) a self-regulating organisation, (b) an investment exchange, or (c) a clearing house, to the extent to which the agreement relates to the regulating provisions of the body concerned. (3) The exclusion provided by subsection (2) above applies only if— (a) the body has applied for a recognition order in accordance with the provisions of this Act; and (b) the application has not been determined. (4) The Chapter I prohibition does not apply to a decision made by— (a) a recognised self-regulating organisation, (b) a recognised investment exchange, or (c) a recognised clearing house, to the extent to which the decision relates to any of that body’s regulating provisions or specified practices. (5) The Chapter I prohibition does not apply to the specified practices of— (a) a recognised self-regulating organisation, a recognised investment exchange or a recognised clearing house; or (b) a person who is subject to— (i) the rules of one of those bodies, or (ii) the statements of principle, rules, regulations or codes of practice made by a designated agency in the exercise of functions transferred to it by a delegation order. (6) The Chapter I prohibition does not apply to any agreement the parties to which consist of or include— (a) a recognised self-regulating organisation, a recognised investment exchange or a recognised clearing house; or (b) a person who is subject to— (i) the rules of one of those bodies, or (ii) the statements of principle, rules, regulations or codes of practice made by a designated agency in the exercise of functions transferred to it by a delegation order, to the extent to which the agreement consists of provisions the inclusion of which is required or contemplated by any of the body’s regulating provisions or specified practices or by the statements of principle, rules, regulations or codes of practice of the agency. (7) The Chapter I prohibition does not apply to— (a) any clearing arrangements; or (b) any agreement between a recognised investment exchange and a recognised clearing house, to the extent to which the agreement consists of provisions the inclusion of which in the agreement is required or contemplated by any clearing arrangements. (8) If the recognition order in respect of a body of the kind mentioned in subsection (1)(a), (b) or (c) above is revoked, subsections (1) and (4) to (7) above are to have effect as if that body had continued to be recognised until the end of the period of six months beginning with the day on which the revocation took effect. (9) In this section— - “the Chapter I prohibition” means the prohibition imposed by section 2(1) of the Competition Act 1998; - “regulating provisions” means— 1. in relation to a self-regulating organisation, any rules made, or guidance issued, by the organisation; 2. in relation to an investment exchange, any rules made, or guidance issued, by the exchange; 3. in relation to a clearing house, any rules made, or guidance issued, by the clearing house; - “specified practices” means— 1. in the case of a recognised self-regulating organisation, the practices mentioned in section 119(2)(a)(ii) and (iii) above (read with section 119(5) and (6)(a)); 2. in the case of a recognised investment exchange, the practices mentioned in section 119(2)(b)(ii) and (iii) above (read with section 119(5) and (6)(b)); 3. in the case of a recognised clearing house, the practices mentioned in section 119(2)(c)(ii) and (iii) above (read with section 119(5) and (6)(b)); 4. in the case of a person who is subject to the statements of principle, rules, regulations or codes of practice issued or made by a designated agency in the exercise of functions transferred to it by a delegation order, the practices mentioned in section 121(2)(c) above (read with section 121(4));

• (3) Omit section 126 (certain practices not to constitute anti-competitive practices for the purposes of the Competition Act 1980).

• (4) For section 127 (modification of statutory provisions in relation to recognised professional bodies), substitute—

(127) (1) This section applies to— (a) any agreement for the constitution of a recognised professional body to the extent to which it relates to the rules or guidance of that body relating to the carrying on of investment business by persons certified by it (“investment business rules”); and (b) any other agreement, the parties to which consist of or include— (i) a recognised professional body, (ii) a person certified by such a body, or (iii) a member of such a body, and which contains a provision required or contemplated by that body’s investment business rules. (2) If it appears to the Treasury, in relation to some or all of the provisions of an agreement to which this section applies— (a) that the provisions in question do not have, and are not intended or likely to have, to any significant extent the effect of restricting, distorting or preventing competition; or (b) that the effect of restricting, distorting or preventing competition which the provisions in question do have, or are intended or are likely to have, is not greater than is necessary for the protection of investors, the Treasury may make a declaration to that effect. (3) If the Treasury make a declaration under this section, the Chapter I prohibition does not apply to the agreement to the extent to which the agreement consists of provisions to which the declaration relates. (4) If the Treasury are satisfied that there has been a material change of circumstances, they may— (a) revoke a declaration made under this section, if they consider that the grounds on which it was made no longer exist; (b) vary such a declaration, if they consider that there are grounds for making a different declaration; or (c) make a declaration even though they have notified the Director of their intention not to do so. (5) If the Treasury make, vary or revoke a declaration under this section they must notify the Director of their decision. (6) If the Director proposes to exercise any Chapter III powers in respect of any provisions of an agreement to which this section applies, he must— (a) notify the Treasury of his intention to do so; and (b) give the Treasury particulars of the agreement and such other information— (i) as he considers will assist the Treasury to decide whether to exercise their powers under this section; or (ii) as the Treasury may request. (7) The Director may not exercise his Chapter III powers in respect of any provisions of an agreement to which this section applies, unless the Treasury— (a) have notified him that they have not made a declaration in respect of those provisions under this section and that they do not intend to make such a declaration; or (b) have revoked a declaration under this section and a period of six months beginning with the date on which the revocation took effect has expired. (8) A declaration under this section ceases to have effect if the agreement to which it relates ceases to be one to which this section applies. (9) In this section— - “the Chapter I prohibition” means the prohibition imposed by section 2(1) of the Competition Act 1998, - “Chapter III powers” means the powers given to the Director by Chapter III of Part I of that Act so far as they relate to the Chapter I prohibition, and expressions used in this section which are also used in Part I of the Competition Act 1998 are to be interpreted in the same way as for the purposes of that Part of that Act. (10) In this section references to an agreement are to be read as applying equally to, or in relation to, a decision or concerted practice. (11) In the application of this section to decisions and concerted practices, references to provisions of an agreement are to be read as references to elements of a decision or concerted practice.

Part II — Companies

The Companies Act 1989 (c. 40)

2

• (1) The Companies Act 1989 is amended as follows.

• (2) In Schedule 14, for paragraph 9 (exclusion of certain agreements from the Restrictive Trade Practices Act 1976), substitute—

(9) (1) The Chapter I prohibition does not apply to an agreement for the constitution of a recognised supervisory or qualifying body to the extent to which it relates to— (a) rules of, or guidance issued by, the body; and (b) incidental matters connected with the rules or guidance. (2) The Chapter I prohibition does not apply to an agreement the parties to which consist of or include— (a) a recognised supervisory or qualifying body, or (b) any person mentioned in paragraph 3(5) or (6) above, to the extent to which the agreement consists of provisions the inclusion of which in the agreement is required or contemplated by the rules or guidance of that body. (3) The Chapter I prohibition does not apply to the practices mentioned in paragraph 3(4)(a) and (b) above. (4) Where a recognition order is revoked, sub-paragraphs (1) to (3) above are to continue to apply for a period of six months beginning with the day on which the revocation takes effect, as if the order were still in force. (5) In this paragraph— (a) “the Chapter I prohibition” means the prohibition imposed by section 2(1) of the Competition Act 1998, (b) references to an agreement are to be read as applying equally to, or in relation to, a decision or concerted practice, and expressions used in this paragraph which are also used in Part I of the Competition Act 1998 are to be interpreted in the same way as for the purposes of that Part of that Act. (6) In the application of this paragraph to decisions and concerted practices, references to provisions of an agreement are to be read as references to elements of a decision or concerted practice.

The Companies (Northern Ireland) Order 1990 (S.I. 1990/593 (N.I. 5))

3

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part III — Broadcasting

The Broadcasting Act 1990 (c. 42)

4

• (1) The Broadcasting Act 1990 is amended as follows.

• (2) In section 194A (which modifies the Restrictive Trade Practices Act 1976 in its application to agreements relating to Channel 3 news provision), for subsections (2) to (6), substitute—

(2) If, having sought the advice of the Director, it appears to the Secretary of State, in relation to some or all of the provisions of a relevant agreement, that the conditions mentioned in subsection (3) are satisfied, he may make a declaration to that effect. (3) The conditions are that— (a) the provisions in question do not have, and are not intended or likely to have, to any significant extent the effect of restricting, distorting or preventing competition; or (b) the effect of restricting, distorting or preventing competition which the provisions in question do have or are intended or are likely to have, is not greater than is necessary— (i) in the case of a relevant agreement falling within subsection (1)(a), for securing the appointment by holders of regional Channel 3 licences of a single body corporate to be the appointed news provider for the purposes of section 31(2), or (ii) in the case of a relevant agreement falling within subsection (1)(b), for compliance by them with conditions included in their licences by virtue of section 31(1) and (2). (4) If the Secretary of State makes a declaration under this section, the Chapter I prohibition does not apply to the agreement to the extent to which the agreement consists of provisions to which the declaration relates. (5) If the Secretary of State is satisfied that there has been a material change of circumstances, he may— (a) revoke a declaration made under this section, if he considers that the grounds on which it was made no longer exist; (b) vary such a declaration, if he considers that there are grounds for making a different declaration; or (c) make a declaration, even though he has notified the Director of his intention not to do so. (6) If the Secretary of State makes, varies or revokes a declaration under this section, he must notify the Director of his decision. (7) The Director may not exercise any Chapter III powers in respect of a relevant agreement, unless— (a) he has notified the Secretary of State of his intention to do so; and (b) the Secretary of State— (i) has notified the Director that he has not made a declaration in respect of the agreement, or provisions of the agreement, under this section and that he does not intend to make such a declaration; or (ii) has revoked a declaration under this section and a period of six months beginning with the date on which the revocation took effect has expired. (8) If the Director proposes to exercise any Chapter III powers in respect of a relevant agreement, he must give the Secretary of State particulars of the agreement and such other information— (a) as he considers will assist the Secretary of State to decide whether to exercise his powers under this section; or (b) as the Secretary of State may request. (9) In this section— - “the Chapter I prohibition” means the prohibition imposed by section 2(1) of the Competition Act 1998; - “Chapter III powers” means the powers given to the Director by Chapter III of Part I of that Act so far as they relate to the Chapter I prohibition; - “Director” means the Director General of Fair Trading; - “regional Channel 3 licence” has the same meaning as in Part I; and expressions used in this section which are also used in Part I of the Competition Act 1998 are to be interpreted in the same way as for the purposes of that Part of that Act. (10) In this section references to an agreement are to be read as applying equally to, or in relation to, a decision or concerted practice. (11) In the application of this section to decisions and concerted practices, references to provisions of an agreement are to be read as references to elements of a decision or concerted practice.

Networking arrangements under the Broadcasting Act 1990 (c. 42)

5

• (1) The Chapter I prohibition does not apply in respect of any networking arrangements to the extent that they—

• (a) have been approved for the purposes of licence conditions imposed under section 291 of the Communications Act 2003; or

• (b) are arrangements that have been considered under Schedule 4 to the Broadcasting Act 1990 and fall to be treated as so approved;

nor does that prohibition apply in respect of things done with a view to arrangements being entered into or approved to the extent that those things have effect for purposes that are directly related to, and necessary for compliance with, conditions so imposed.

• (2) OFCOM must publish a list of the networking arrangements which in their opinion are excluded from the Chapter I prohibition by virtue of sub-paragraph (1).

• (3) OFCOM must—

• (a) consult the CMA before publishing the list, and

• (b) publish the list in such a way as they think most suitable for bringing it to the attention of persons who, in their opinion, would be affected by, or likely to have an interest in, it.

• (4) In this paragraph “networking arrangements” has the same meaning as in Part 3 of the Communications Act 2003.

Part IV — Environmental Protection

Producer responsibility obligations

6

• (1) The Environment Act 1995 is amended as follows.

• (2) In section 94(1) (supplementary provisions about regulations imposing producer responsibility obligations on prescribed persons), after paragraph (o), insert—

(oa) the exclusion or modification of any provision of Part I of the Competition Act 1998 in relation to exemption schemes or in relation to any agreement, decision or concerted practice at least one of the parties to which is an operator of an exemption scheme;

.

• (3) After section 94(6), insert—

(6A) Expressions used in paragraph (oa) of subsection (1) above which are also used in Part I of the Competition Act 1998 are to be interpreted in the same way as for the purposes of that Part of that Act.

• (4) After section 94, insert—

(94A) (1) For the purposes of this section, the relevant paragraphs are paragraphs (n), (o), (oa) and (ya) of section 94(1) above. (2) Regulations made by virtue of any of the relevant paragraphs may include transitional provision in respect of agreements or exemption schemes— (a) in respect of which information has been required for the purposes of competition scrutiny under any regulation made by virtue of paragraph (ya); (b) which are being, or have been, considered for the purposes of competition scrutiny under any regulation made by virtue of paragraph (n) or (ya); or (c) in respect of which provisions of the Restrictive Trade Practices Acts 1976 and 1977 have been modified or excluded in accordance with any regulation made by virtue of paragraph (o). (3) Subsections (2), (3), (5) to (7) and (10) of section 93 above do not apply to a statutory instrument which contains only regulations made by virtue of any of the relevant paragraphs or subsection (2) above. (4) Such a statutory instrument shall be subject to annulment in pursuance of a resolution of either House of Parliament.

SCHEDULE 3

Planning obligations

1

• (1) The Chapter I prohibition does not apply to an agreement—

• (a) to the extent to which it is a planning obligation;

• (b) which is made under section 75 (agreements regulating development or use of land) or 246 (agreements relating to Crown land) of the Town and Country Planning (Scotland) Act 1997; or

• (c) which is made under Article 40 of the Planning (Northern Ireland) Order 1991 section 76 of the Planning Act (Northern Ireland) 2011 .

• (2) In sub-paragraph (1)(a), “planning obligation” means—

• (a) a planning obligation for the purposes of section 106 of the Town and Country Planning Act 1990; or

• (b) a planning obligation for the purposes of section 299A of that Act.

Section 21(2) agreements

2

• (1) The Chapter I prohibition does not apply to an agreement in respect of which a direction under section 21(2) of the Restrictive Trade Practices Act 1976 is in force immediately before the coming into force of section 2 (“a section 21(2) agreement”).

• (2) If a material variation is made to a section 21(2) agreement, sub-paragraph (1) ceases to apply to the agreement on the coming into force of the variation.

• (3) Sub-paragraph (1) does not apply to a particular section 21(2) agreement if the OFT gives a direction under this paragraph to that effect.

• (4) If the OFT is considering whether to give a direction under this paragraph, it may by notice in writing require any party to the agreement in question to give the OFT such information in connection with the agreement as it may require.

• (5) The OFT may give a direction under this paragraph only as provided in sub-paragraph (6) or (7).

• (6) If at the end of such period as may be specified in rules under section 51 a person has failed, without reasonable excuse, to comply with a requirement imposed under sub-paragraph (4), the OFT may give a direction under this paragraph.

• (7) The OFT may also give a direction under this paragraph if it considers—

• (a) that the agreement will, if not excluded, infringe the Chapter I prohibition; and

• (b) that the OFT isnot likely to grant it an unconditional individual exemption.

• (8) For the purposes of sub-paragraph (7) an individual exemption is unconditional if no conditions or obligations are imposed in respect of it under section 4(3)(a).

• (9) A direction under this paragraph—

• (a) must be in writing;

• (b) may be made so as to have effect from a date specified in the direction (which may not be earlier than the date on which it is given).

...

3

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Services of general economic interest etc.

4

Neither the Chapter I prohibition nor the Chapter II prohibition applies to an undertaking entrusted with the operation of services of general economic interest or having the character of a revenue-producing monopoly in so far as the prohibition would obstruct the performance, in law or in fact, of the particular tasks assigned to that undertaking.

Compliance with legal requirements

5

• (1) The Chapter I prohibition does not apply to an agreement to the extent to which it is made in order to comply with a legal requirement.

• (2) The Chapter II prohibition does not apply to conduct to the extent to which it is engaged in an order to comply with a legal requirement.

• (3) In this paragraph “legal requirement” means a requirement—

• (a) imposed by or under any enactment in force in the United Kingdom;

• (b) imposed by or under the EU withdrawal agreement or the EEA EFTA separation agreement and having legal effect in the United Kingdom without further enactment (and in this paragraph, “EEA EFTA separation agreement” has the same meaning as in the European Union (Withdrawal Agreement) Act 2020 (see section 39(1) of that Act)).

• (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Avoidance of conflict with international obligations

6

• (1) If the Secretary of State is satisfied that, in order to avoid a conflict between provisions of this Part and an international obligation of the United Kingdom, it would be appropriate for the Chapter I prohibition not to apply to—

• (a) a particular agreement, or

• (b) any agreement of a particular description,

he may by order exclude the agreement, or agreements of that description, from the Chapter I prohibition.

• (2) An order under sub-paragraph (1) may make provision for the exclusion of the agreement or agreements to which the order applies, or of such of them as may be specified, only in specified circumstances.

• (3) An order under sub-paragraph (1) may also provide that the Chapter I prohibition is to be deemed never to have applied in relation to the agreement or agreements, or in relation to such of them as may be specified.

• (4) If the Secretary of State is satisfied that, in order to avoid a conflict between provisions of this Part and an international obligation of the United Kingdom, it would be appropriate for the Chapter II prohibition not to apply in particular circumstances, he may by order provide for it not to apply in such circumstances as may be specified.

• (5) An order under sub-paragraph (4) may provide that the Chapter II prohibition is to be deemed never to have applied in relation to specified conduct.

• (6) An international arrangement relating to civil aviation and designated by an order made by the Secretary of State is to be treated as an international obligation for the purposes of this paragraph.

• (7) In this paragraph and paragraph 7 “specified” means specified in the order.

Public policy

7

• (1) If the Secretary of State is satisfied that there are exceptional and compelling reasons of public policy why the Chapter I prohibition ought not to apply to—

• (a) a particular agreement, or

• (b) any agreement of a particular description,

he may by order exclude the agreement, or agreements of that description, from the Chapter I prohibition.

• (2) An order under sub-paragraph (1) may make provision for the exclusion of the agreement or agreements to which the order applies, or of such of them as may be specified, only in specified circumstances.

• (3) An order under sub-paragraph (1) may also provide that the Chapter I prohibition is to be deemed never to have applied in relation to the agreement or agreements, or in relation to such of them as may be specified.

• (4) If the Secretary of State is satisfied that there are exceptional and compelling reasons of public policy why the Chapter II prohibition ought not to apply in particular circumstances, he may by order provide for it not to apply in such circumstances as may be specified.

• (5) An order under sub-paragraph (4) may provide that the Chapter II prohibition is to be deemed never to have applied in relation to specified conduct.

Coal and steel

8

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Agricultural products

9

• (1) The Chapter I prohibition does not apply to an agreement to the extent to which it relates to production of or trade in an agricultural product and—

• (a) forms an integral part of a national market organisation;

• (b) is necessary for the attainment of the objectives set out in Article 39 of the Treaty on the Functioning of the European Union of the Treaty; or

• (c) is an agreement of farmers or farmers’ associations (or associations of such associations) belonging to a single member State which concerns—

• (i) the production or sale of agricultural products, or

• (ii) the use of joint facilities for the storage, treatment or processing of agricultural products,

and under which there is no obligation to charge identical prices.

The Chapter 1 prohibition does not apply to an agreement to the extent that it is an agreement between the members of—

• (a) a recognised producer organisation (“PO”), or

• (b) a recognised association of producer organisations (“APO”),

for the PO or APO (as the case may be) to carry out one or more of the activities mentioned in sub-paragraph (1A) on behalf of its members (for all or part of their total production), provided that Conditions A and B are also met.

• (1A) The activities are—

• (a) planning production;

• (b) optimising production costs;

• (c) concentrating supply;

• (d) placing products on the market;

• (e) negotiating supply contracts.

• (1B) Condition A is that—

• (a) in the case of a PO, the PO concentrates supply and places the products of its members on the market, whether or not there is a transfer of ownership of agricultural products by the producers to the PO, or

• (b) in the case of an APO, the APO concentrates supply and places the products of the members of the POs it represents on the market, whether or not there is a transfer of ownership of agricultural products by the producers to the APO or to any of the POs the APO represents.

• (1C) Condition B is that—

• (a) in the case of a PO, none of the producers concerned are members of any other PO as regards the products covered by the activities mentioned in sub-paragraph (1A) to which the agreement relates, or

• (b) in the case of an APO, none of the producers concerned are members of a PO that is a member of any other APO as regards the products covered by the activities mentioned in sub-paragraph (1A) to which the agreement relates.

• (1D) But the Secretary of State may decide that the RPO exclusion applies if Condition B is not met, if—

• (a) every producer which is a member of more than one PO holds distinct production units located in different geographical areas, and

• (b) the Secretary of State considers that it is appropriate in all the circumstances for the RPO exclusion to apply.

• (1E) If the Secretary of State is considering whether to make a decision under sub-paragraph (1D), the Secretary of State may by notice in writing require any party to the agreement in question to give the Secretary of State such information in connection with the agreement as the Secretary of State may require.

• (2) If the Commission determines that an agreement does not fulfil the conditions specified by the provision for agricultural products for exclusion from Article 101(1), the exclusion provided by this paragraph (“the agriculture exclusion”) is to be treated as ceasing to apply to the agreement on the date of the decision.

• (3) The agriculture exclusion RPO exclusion does not apply to a particular agreement if the CMA gives a direction under this paragraph to that effect.

• (4) If the CMA is considering whether to give a direction under this paragraph, it may by notice in writing require any party to the agreement in question to give the CMA such information in connection with the agreement as it may require.

• (5) The CMA may give a direction under this paragraph only as provided in sub-paragraph (6) or (7).

• (6) If at the end of such period as may be specified in rules under section 51 a person has failed, without reasonable excuse, to comply with a requirement imposed under sub-paragraph (4), the CMA may give a direction under this paragraph.

• (7) The CMA may also give a direction under this paragraph if it considers that an agreement (whether or not it considers that it infringes the Chapter I prohibition) is likely, or is intended, substantially and unjustifiably to prevent, restrict or distort competition in relation to an agricultural product.

• (8) A direction under this paragraph—

• (a) must be in writing;

• (b) may be made so as to have effect from a date specified in the direction (which may not be earlier than the date on which it is given).

• (9) In this paragraph—

• “agricultural product” means any product of a kind listed in Annex I to the Treaty; and

• “provision for agricultural products” means Council Regulation (EEC) No. 26/62 of 4th April 1962 applying certain rules of competition to production of and trade in agricultural products.

In this paragraph—

• “agricultural product” means a product that falls within a sector mentioned in Schedule 1 to the Agriculture Act 2020;

• “recognised association of producer organisations” means an association recognised under section 30 of that Act;

• “recognised producer organisation” means a producer organisation recognised under section 30 of that Act.

SCHEDULE 4

Part I — Exclusion

General

1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Designated rules

2

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Application for designation

3

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Alterations

4

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Reviewing the list

5

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Removal from the list

6

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Inspection

7

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part II — Professional Services

Legal

8

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Medical

9

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Dental

10

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Ophthalmic

11

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Veterinary

12

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Nursing

13

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Midwifery

14

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Physiotherapy

15

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Chiropody

16

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Architectural

17

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Accounting and auditing

18

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Insolvency

19

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Patent agency

20

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

21

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Parliamentary agency

22

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Surveying

23

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Engineering and technology et ceteralaetc.

24

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Educational

25

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Religious

26

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

SCHEDULE 5

Terms used

1

In this Schedule—

• “applicant” means the person making an application to which this Schedule applies;

• “application” means an application under section 13 or an application under section 14;

• “application for guidance” means an application under section 13;

• “application for a decision” means an application under section 14;

• “rules” means rules made by the OFT under section 51; and

• “specified” means specified in the rules.

General rules about applications

2

• (1) An application must be made in accordance with rules.

• (2) A party to an agreement who makes an application must take all reasonable steps to notify all other parties to the agreement of whom he is aware—

• (a) that the application has been made; and

• (b) as to whether it is for guidance or a decision.

• (3) Notification under sub-paragraph (2) must be in the specified manner.

Preliminary investigation

3

• (1) If, after a preliminary investigation of an application, the OFT considers that it is likely—

• (a) that the agreement concerned will infringe the Chapter I prohibition, and

• (b) that it would not be appropriate to grant the agreement an individual exemption,

it may make a decision (“a provisional decision”) under this paragraph.

• (2) If the OFT makes a provisional decision—

• (a) the OFT must notify the applicant in writing of its provisional decision; and

• (b) section 13(4) or (as the case may be) section 14(4) is to be taken as never having applied.

• (3) When making a provisional decision, the OFT must follow such procedure as may be specified.

• (4) A provisional decision does not affect the final determination of an application.

• (5) If the OFT has given notice to the applicant under sub-paragraph (2) in respect of an application for a decision, he may continue with the application under section 14.

Procedure on application for guidance

4

When determining an application for guidance, the OFT must follow such procedure as may be specified.

Procedure on application for a decision

5

• (1) When determining an application for a decision, the OFT must follow such procedure as may be specified.

• (2) The OFT must arrange for the application to be published in such a way as it thinks most suitable for bringing the application to the attention of those likely to be affected by it, unless the OFT is satisfied that it will be sufficient ... to seek information from one or more particular persons other than the applicant.

• (3) In determining the application, the OFT must take into account any representations made to it by persons other than the applicant.

Publication of decisions

6

If the OFT determines an application for a decision it must publish its decision, together with its reasons for making it, in such manner as may be specified.

Delay by the OFT

7

• (1) This paragraph applies if the court is satisfied, on the application of a person aggrieved by the failure of the OFT to determine an application for a decision in accordance with the specified procedure, that there has been undue delay on the part of the OFT in determining the application.

• (2) The court may give such directions to the OFT as it considers appropriate for securing that the application is determined without unnecessary further delay.

SCHEDULE 6

Terms used

1

In this Schedule—

• “applicant” means the person making an application to which this Schedule applies;

• “application” means an application under section 21 or an application under section 22;

• “application for guidance” means an application under section 21;

• “application for a decision” means an application under section 22;

• “other party”, in relation to conduct of two or more persons, means one of those persons other than the applicant;

• “rules” means rules made by the OFT under section 51; and

• “specified” means specified in the rules.

General rules about applications

2

• (1) An application must be made in accordance with rules.

• (2) If the conduct to which an application relates is conduct of two or more persons, the applicant must take all reasonable steps to notify all of the other parties of whom he is aware—

• (a) that the application has been made; and

• (b) as to whether it is for guidance or a decision.

• (3) Notification under sub-paragraph (2) must be in the specified manner.

Preliminary investigation

3

• (1) If, after a preliminary investigation of an application, the OFT considers that it is likely that the conduct concerned will infringe the Chapter II prohibition, it may make a decision (“a provisional decision”) under this paragraph.

• (2) If the OFT makes a provisional decision, it must notify the applicant in writing of that decision.

• (3) When making a provisional decision, the OFT must follow such procedure as may be specified.

• (4) A provisional decision does not affect the final determination of an application.

• (5) If the OFT has given notice to the applicant under sub-paragraph (2) in respect of an application for a decision, he may continue with the application under section 22.

Procedure on application for guidance

4

When determining an application for guidance, the OFT must follow such procedure as may be specified.

Procedure on application for a decision

5

• (1) When determining an application for a decision, the OFT must follow such procedure as may be specified.

• (2) The OFT must arrange for the application to be published in such a way as it thinks most suitable for bringing the application to the attention of those likely to be affected by it, unless the OFT is satisfied that it will be sufficient ... to seek information from one or more particular persons other than the applicant.

• (3) In determining the application, the OFT must take into account any representations made to it by persons other than the applicant.

Publication of decisions

6

If the OFT determines an application for a decision it must publish its decision, together with its reasons for making it, in such manner as may be specified.

Delay by the OFT

7

• (1) This paragraph applies if the court is satisfied, on the application of a person aggrieved by the failure of the OFT to determine an application for a decision in accordance with the specified procedure, that there has been undue delay on the part of the OFT in determining the application.

• (2) The court may give such directions to the OFT as it considers appropriate for securing that the application is determined without unnecessary further delay.

SCHEDULE 7

Part I — General

Interpretation

1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Membership of the Commission

2

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Chairman and deputy chairmen

3

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

President

4

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The Council

5

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Term of office

6

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Expenses, remuneration and pensions

7

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The Commission’s powers

8

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Staff

9

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Procedure

10

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Application of seal and proof of instruments

11

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Accounts

12

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Status

13

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Part II — Performance of the Commission’s General Functions

Interpretation

14

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Discharge of certain functions by groups

15

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Chairmen of groups

16

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Replacement of member of group

17

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Attendance of other members

18

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Procedure

19

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Effect of exercise of functions by group

20

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Casting votes

21

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Newspaper merger references

22

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Part III — Appeals

Interpretation

23

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Training of appeal panel members

24

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Acting President

25

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Panel of tribunal chairmen

26

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Constitution of tribunals

27

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Part IV — Miscellaneous

Disqualification of members for House of Commons

28

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Disqualification of members for Northern Ireland Assembly

29

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Part V — Transitional provisions

Interpretation

30

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Chairman

31

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Deputy chairmen

32

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Reporting panel members

33

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Specialist panel members

34

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Secretary

35

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Council

36

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SCHEDULE 8

Part I — General

Interpretation

1

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General procedure

2

• (1) An appeal to the Tribunal under section 46, 47 or 49D(3) must be made by sending a notice of appeal to it within the specified period.

• (2) The notice of appeal must set out the grounds of appeal in sufficient detail to indicate—

• (a) under which provision of this Act the appeal is brought;

• (b) to what extent (if any) the appellant contends that the decision against, or with respect to which, the appeal is brought was based on an error of fact or was wrong in law; and

• (c) to what extent (if any) the appellant is appealing against the CMA's exercise of its discretion in making the disputed decision.

• (3) The Tribunal may give an appellant leave to amend the grounds of appeal identified in the notice of appeal.

• (4) In this paragraph references to the Tribunal are to the Tribunal as constituted (in accordance with section 14 of the Enterprise Act 2002) for the purposes of the proceedings in question.

• (5) Nothing in this paragraph restricts the power under section 15 of the Enterprise Act 2002 (Tribunal rules) to make provision as to the manner of instituting proceedings before the Tribunal.

Decisions of the tribunal

3

• (A1) This paragraph applies to any appeal under section 46 or 47 other than—

• (a) an appeal under section 46 against, or with respect to, a decision of the kind specified in subsection (3)(g) , (h), (ha) or (hb) of that section, and

• (b) an appeal under section 47(1)(b) , (c), (d) or (e).

• (1) The Tribunal must determine the appeal on the merits by reference to the grounds of appeal set out in the notice of appeal.

• (2) The Tribunal may confirm or set aside the decision which is the subject of the appeal, or any part of it, and may—

• (a) remit the matter to the CMA ,

• (b) impose or revoke, or vary the amount of, a penalty,

• (c) grant or cancel an individual exemption or vary any conditions or obligations imposed in relation to the exemption by the CMA ,

• (d) give such directions, or take such other steps, as the CMA could itself have given or taken, or

• (e) make any other decision which the CMA could itself have made.

• (3) Any decision of the Tribunal on an appeal has the same effect, and may be enforced in the same manner, as a decision of the CMA .

• (4) If the Tribunal confirms the decision which is the subject of the appeal it may nevertheless set aside any finding of fact on which the decision was based.

4

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Part II — Rules

Registrar of Appeal Tribunals

5

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Notice of appeal

6

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Response to the appeal

7

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