Enterprise Act 2002

Part 1 — General functions of the CMA

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Defamation

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Restricted PI references: publication

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Role of CMA in relation to undertakings and orders in public interest cases: Part 4

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Cartel offence

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General functions of the CMA

Powers of trustee in bankruptcy

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• (1) The CMA has the function of obtaining, compiling and keeping under review information about matters relating to the carrying out of its functions.

• (2) That function is to be carried out with a view to (among other things) ensuring that the CMA has sufficient information to take informed decisions and to carry out its other functions effectively.

• (3) In carrying out that function the CMA may carry out, commission or support (financially or otherwise) research.

Disqualification from office: general

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• (1) The CMA has the function of—

• (a) making the public aware of the ways in which competition may benefit consumers in, and the economy of, the United Kingdom; and

• (b) giving information or advice in respect of matters relating to any of its functions to the public.

• (2) In carrying out those functions the CMA may—

• (a) publish educational materials or carry out other educational activities; or

• (b) support (financially or otherwise) the carrying out by others of such activities or the provision by others of information or advice.

Turnover

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• (1) The CMA has the function of—

• (a) making proposals, or

• (b) giving other information or advice,

on matters relating to any of its functions to any Minister of the Crown or other public authority (including proposals, information or advice as to any aspect of the law or a proposed change in the law).

• (1A) The CMA may, in particular, carry out the function under subsection (1)(a) by making a proposal in the form of a recommendation to a Minister of the Crown about the potential effect of a proposal for Westminster legislation on competition within any market or markets in the United Kingdom for goods or services.

• (1B) The CMA must publish such a recommendation in such manner as the CMA considers appropriate for bringing the subject matter of the recommendation to the attention of those likely to be affected by it.

• (2) A Minister of the Crown may request the CMA to make proposals or give other information or advice on any matter relating to any of its functions; and the CMA shall, so far as is reasonably practicable and consistent with its other functions, comply with the request.

• (3) In this section—

• “market in the United Kingdom” includes— so far as it operates in the United Kingdom or a part of the United Kingdom, any market which operates there and in another country or territory or in a part of another country or territory; and any market which operates only in a part of the United Kingdom; and the reference to a market for goods or services includes a reference to a market for goods and services; and

• “Westminster legislation” means— an Act of Parliament, or subordinate legislation (within the meaning given by section 21 of the Interpretation Act 1978).

Transport Act 2000 (c. 38)

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Miscellaneous

Transport Act 2000 (c. 38)

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Section 12 of the Fair Trading Act 1973 (c. 41) (in this Act referred to as “the 1973 Act”) and section 13 of the Competition Act 1980 (c. 21) (powers of Secretary of State to give directions) shall cease to have effect.

Electricity Act 1989 (c. 29)

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• (1) The following provisions of the 1973 Act shall cease to have effect—

• (a) section 3 and Schedule 2 (which establish, and make provision with respect to, the Consumer Protection Advisory Committee);

• (b) sections 13 to 21 (which relate to references made to, and reports of, that Committee); and

• (c) section 22 (power of Secretary of State to make orders in pursuance of a report of that Committee).

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) If the orders saved by subsection (2)(a) have been revoked, the Secretary of State may by order—

• (a) repeal any unrepealed provision of Part 2 of the 1973 Act and subsection (2) above; and

• (b) make such other consequential modifications of any Act or subordinate legislation (whenever passed or made) as he thinks fit.

• (4) An order under subsection (3)—

• (a) may make transitional or saving provision in connection with any modification made by the order; and

• (b) shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

Super-complaints to OFT

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• (1) This section applies where a designated consumer body makes a complaint to the CMA that any feature, or combination of features, of a market in the United Kingdom for goods or services is or appears to be significantly harming the interests of consumers.

• (2) The CMA must, within 90 days after the day on which it receives the complaint, publish a response stating how it proposes to deal with the complaint, and in particular—

• (a) whether it has decided to take any action, or to take no action, in response to the complaint, and

• (b) if it has decided to take action, what action it proposes to take.

• (3) The response must state the CMA's reasons for its proposals.

• (4) The Secretary of State may by order amend subsection (2) by substituting any period for the period for the time being specified there.

• (5) “Designated consumer body” means a body designated by the Secretary of State by order.

• (6) The Secretary of State—

• (a) may designate a body only if it appears to him to represent the interests of consumers of any description, and

• (b) must publish (and may from time to time vary) other criteria to be applied by him in determining whether to make or revoke a designation.

• (7) The CMA —

• (a) must issue guidance as to the presentation by the complainant of a reasoned case for the complaint, and

• (b) may issue such other guidance as appears to it to be appropriate for the purposes of this section.

• (8) An order under this section—

• (a) shall be made by statutory instrument, and

• (b) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

• (9) In this section—

• (a) references to a feature of a market in the United Kingdom for goods or services have the same meaning as if contained in Part 4, and

• (b) “consumer” means an individual who is a consumer within the meaning of that Part.

Part 2 — The Competition Appeal Tribunal

The Competition Appeal Tribunal

Pensions etc. of former Directors

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• (1) There shall be a tribunal, to be called the Competition Appeal Tribunal (in this Part referred to as “the Tribunal”).

• (2) The Tribunal shall consist of—

• (a) a person appointed by the Lord Chancellor to preside over the Tribunal (in this Part referred to as “the President”);

• (aa) such judges as are nominated from time to time by the Lord Chief Justice of England and Wales from the High Court of England and Wales;

• (ab) such judges as are nominated from time to time by the Lord President of the Court of Session from the judges of the Court of Session;

• (ac) such judges as are nominated from time to time by the Lord Chief Justice of Northern Ireland from the High Court in Northern Ireland;

• (b) members appointed by the Lord Chancellor to form a panel of chairmen; and

• (c) members appointed by the Secretary of State to form a panel of ordinary members.

• (3) The Tribunal shall have a Registrar appointed by the Secretary of State.

• (4) The expenses of the Tribunal shall be paid by the Competition Service.

• (5) Schedule 2 (which makes further provision about the Tribunal) has effect.

Tribunal rules

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• (1) There shall be a body corporate called the Competition Service (in this Part referred to as “the Service”).

• (2) The purpose of the Service is to fund, and provide support services to, the Competition Appeal Tribunal.

• (3) In subsection (2) “support services” includes the provision of staff, accommodation and equipment and any other services which facilitate the carrying out by the Tribunal of its functions.

• (4) The activities of the Service are not carried out on behalf of the Crown (and its property is not to be regarded as held on behalf of the Crown).

• (5) The Secretary of State shall pay to the Service such sums as he considers appropriate to enable it to fund the activities of the Tribunal and to carry out its other activities.

• (6) Schedule 3 (which makes further provision about the Service) has effect.

Constitution of Tribunal for particular proceedings and its decisions

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• (1) For the purposes of any proceedings before it, including proceedings relating to the approval of a collective settlement under section 49A or 49B of the 1998 Act, the Tribunal shall consist of a chairman and two other members.

• (1A) But in the case of proceedings relating to a claim under section 47A of the 1998 Act which is subject to the fast-track procedure (as described in Tribunal rules), the Tribunal may consist of a chairman only.

• (2) The chairman must be the President, a judge within any of paragraphs (aa) to (ac) of section 12(2) or a member of the panel of chairmen.

• (3) The other members may be chosen from the judges within paragraphs (aa) to (ac) of section 12(2), the panel of chairmen or the panel of ordinary members.

• (4) If the members of the Tribunal as constituted in accordance with this section are unable to agree on any decision, the decision is to be taken by majority vote.

• (5) This section has effect subject to paragraphs 10A(1)(a) and 18 of Schedule 4 (consequences of a member of the Tribunal being unable to continue after the proceedings have begun to be heard).

• (6) Part 1 of Schedule 4 (which makes further provision about the decisions of the Tribunal and their enforcement) has effect.

Tribunal rules

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• (1) The Secretary of State may, after consulting the President and such other persons as he considers appropriate, make rules (in this Part referred to as “Tribunal rules”) with respect to proceedings before the Tribunal, including proceedings relating to the approval of a collective settlement under section 49A or 49B of the 1998 Act.

• (2) Tribunal rules may make provision with respect to matters incidental to or consequential upon appeals provided for by or under any Act to the Court of Appeal or the Court of Session in relation to a decision of the Tribunal.

• (3) Tribunal rules may—

• (a) specify qualifications for appointment as Registrar;

• (b) confer functions on the President or the Registrar in relation to proceedings before the Tribunal; and

• (c) contain incidental, supplemental, consequential or transitional provision.

• (4) The power to make Tribunal rules is exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

• (5) Part 2 of Schedule 4 (which makes further provision about the rules) has effect, but without prejudice to the generality of subsection (1).

Patents Act 1977 (c. 37)

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• (1) The Lord Chancellor may by regulations—

• (a) make provision enabling the court—

• (i) to transfer to the Tribunal for its determination so much of any proceedings before the court as relates to an infringement issue; and

• (ii) to give effect to the determination of that issue by the Tribunal; and

• (b) make such incidental, supplementary, consequential, transitional or saving provision as the Lord Chancellor may consider appropriate.

• (2) The power to make regulations under subsection (1) is exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

• (3) Rules of court may prescribe the procedure to be followed in connection with a transfer mentioned in subsection (1).

• (4) The court may transfer to the Tribunal, in accordance with rules of court, so much of any proceedings before it as relates to a claim to which section 47A of the 1998 Act applies.

• (5) Rules of court may make provision in connection with the transfer from the Tribunal to the court of all or any part of a claim made in proceedings under section 47A of the 1998 Act.

• (6) In this section—

• “the court” means— the High Court or the county court; or the Court of Session or a sheriff court; and

• “infringement issue” means any question relating to whether or not an infringement of the Chapter I prohibition or the Chapter II prohibition has been or is being committed;

but otherwise any terms used in this section and Part 1 of the 1998 Act have the same meaning as they have in that Part.

Proceedings under Part 1 of 1998 Act

Third party appeals

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For section 47 of the 1998 Act (third party appeals) there is substituted—

(47) (1) A person who does not fall within section 46(1) or (2) may appeal to the Tribunal with respect to a decision falling within paragraphs (a) to (f) of section 46(3) or such other decision of the OFT under this Part as may be prescribed. (2) A person may make an appeal under subsection (1) only if the Tribunal considers that he has a sufficient interest in the decision with respect to which the appeal is made, or that he represents persons who have such an interest. (3) The making of an appeal under this section does not suspend the effect of the decision to which the appeal relates.

Electricity Act 1989 (c. 29)

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• (1) After section 47 of the 1998 Act there is inserted—