Enterprise and Regulatory Reform Act 2013

(143A) (1) This section applies in relation to a report prepared under section 142 in respect of a full PI reference. (2) The CMA shall publish the report if it contains— (a) the decision of the CMA that there is no adverse effect on competition; (b) the decision of the CMA that there is an adverse effect on competition but that the feature or combination of features which gave rise to it does not operate and may not be expected to operate against the public interest; or (c) the decisions of the CMA that there is one or more than one adverse effect on competition and that one or more than one of the features or combinations of features which gave rise to an adverse effect on competition operates or may be expected to operate against the public interest but, on the question mentioned in section 141A(5)(a), and in relation to each effect adverse to the public interest concerned, that no action should be taken by the Secretary of State. (3) The CMA shall give the report to the Secretary of State if it contains the decisions of the CMA— (a) that there is one or more than one adverse effect on competition and that one or more than one of the features or combinations of features which gave rise to an adverse effect on competition operates or may be expected to operate against the public interest; and (b) in relation to at least one effect adverse to the public interest concerned, that action should be taken by the Secretary of State. (4) The Secretary of State shall publish, no later than publication of the Secretary of State's decision under section 146A(2) in relation to the case, a report of the CMA given to the Secretary of State under subsection (3) and not required to be published by virtue of section 148A(3).

11

• (1) Section 144 (time-limits for investigations and reports in public interest cases) is amended as follows.

• (2) In subsection (1)—

• (a) for “the date of the reference” substitute “ the relevant date ”, and

• (b) for the words from “publish it” to the end substitute “ publish it under section 143(1) or 143A(2) or (as the case may be) give it to the Secretary of State in accordance with section 143(3) or 143A(3). ”

• (3) After subsection (1) insert—

(1A) For the purposes of subsection (1), the “relevant date” is— (a) in the case of a report in relation to a restricted PI reference or to a full PI reference which specifies that the Secretary of State does not propose to appoint a public interest expert, the date of the reference; (b) in the case of a report in relation to a full PI reference which specifies that the Secretary of State proposes to appoint a public interest expert, the earliest of the following— (i) the date of the appointment of the expert; (ii) the date on which the Secretary of State gives notice to the CMA that the Secretary of State no longer intends to appoint such an expert; (iii) the end of the period of 2 months beginning with the date of the reference.

• (4) In subsection (4), after “143(1) or (3)” insert “ or (as the case may be) 143A(2) or (3) ”.

12

• (1) Section 145 (restrictions where public interest considerations not finalised: Part 4) is amended as follows.

• (2) In subsection (2), after “143(3)” insert “ or (as the case may be) 143A(3) ”.

• (3) In subsection (3), after “141(3)” insert “ or (as the case may be) 141A(4) and (5). ”

• (4) In subsection (4), after “141(3)” insert “ or (as the case may be) 141A(4) and (5). ”

13

• (1) Section 146 (decision of Secretary of State) is amended as follows.

• (2) In subsection (1), in the words before paragraph (a), for “report of the Commission” substitute “ report of the CMA in relation to a restricted PI reference ”.

• (3) In the heading, at the beginning, insert “ Restricted PI references: ”.

14

After section 146 insert—

(146A) (1) Subsection (2) applies where the Secretary of State has received a report of the CMA in relation to a full PI reference which— (a) has been prepared under section 142; (b) contains the decisions of the CMA that there is one or more than one adverse effect on competition and that one or more than one of the features or combinations of features that gave rise to an adverse effect on competition operates or may be expected to operate against the public interest and that, in relation to at least one effect adverse to the public interest concerned, action should be taken by the Secretary of State; and (c) has been given to the Secretary of State as required by section 143A(3). (2) The Secretary of State shall decide whether to make an adverse public interest finding in relation to the matter and whether to make no finding at all in the matter. (3) For the purposes of this Part, the Secretary of State makes an adverse public interest finding in relation to a matter if, in relation to that matter, the Secretary of State decides— (a) that there is an adverse effect on competition; (b) that there is one or more than one admissible public interest consideration which is relevant to the matter; and (c) taking account only of any adverse effect on competition and any relevant admissible public interest consideration or considerations, that any feature or combination of features which gave rise to an adverse effect on competition operates or may be expected to operate against the public interest. (4) The Secretary of State may make no finding at all in a matter only if the Secretary of State decides that there is no admissible public interest consideration which is relevant to a consideration of the matter concerned. (5) In deciding whether to make an adverse public interest finding under subsection (2), the Secretary of State shall accept the decision of the CMA as to whether there is an adverse effect on competition in relation to the matter. (6) The Secretary of State shall make and publish the decision under subsection (2) within the period of 90 days beginning with the receipt of the report of the CMA under section 142. (7) In this section “admissible public interest consideration” means a public interest consideration which— (a) was mentioned in the intervention notice concerned; and (b) was not disregarded by the CMA for the purposes of its report under section 142.

15

In section 147 (remedial action by Secretary of State), in the heading, at the beginning, insert “ Restricted PI references: ”.

16

After section 147 insert—

(147A) (1) Subsection (2) applies where the Secretary of State has decided under subsection (2) of section 146A within the period required by subsection (6) of that section to make an adverse public interest finding in relation to a matter and has published the decision within the period so required. (2) The Secretary of State may take such action under section 159 or 161 as the Secretary of State considers to be reasonable and practicable to remedy, mitigate or prevent any of the effects adverse to the public interest which have resulted from, or may be expected to result from, the features or combinations of features in question. (3) In making a decision under subsection (2), the Secretary of State shall, in particular, have regard to the report of the CMA under section 142. (4) In making a decision under subsection (2), the Secretary of State may, in particular, have regard to— (a) the need to achieve as comprehensive a solution as is reasonable and practicable to the effects adverse to the public interest concerned; and (b) any detrimental effects on customers so far as resulting from those effects.

17

• (1) Section 148 (reversion of the matter) is amended as follows.

• (2) Omit subsections (3) to (5).

• (3) For the heading substitute “ Restricted PI references: reversion of the matter to CMA ”.

18

After section 148 insert—

(148A) (1) This section applies if— (a) the Secretary of State decides under section 146A(2) to make no finding at all in the matter; or (b) the Secretary of State fails to make and publish the decision under subsection (2) of section 146A within the period required by subsection (6) of that section. (2) The CMA shall proceed under section 138 as if— (a) a reference under section 131 had been made (in accordance with the requirements imposed by this Part) instead of a full PI reference; and (b) its report had been prepared and published under section 136 within the period permitted by section 137. (3) The CMA shall publish the report which has been prepared by it under section 142 (if still unpublished) as soon as it becomes able to proceed by virtue of subsection (2). (4) In relation to proceedings by virtue of subsection (2), the reference in section 138(3) to decisions of the CMA included in its report by virtue of section 134(4) is to be construed as a reference to decisions which were included in the report of the CMA by virtue of section 141A(6). (5) Where the CMA becomes under a duty to proceed as mentioned in subsection (2), references in this Part to a reference under section 131, so far as necessary, are to be construed accordingly. (6) Where the CMA, in proceeding by virtue of subsection (2), intends to proceed in a way which is not consistent with its decisions as included in its report by virtue of section 141A(6), it shall not so proceed without the consent of the Secretary of State. (7) The Secretary of State shall not withhold consent under subsection (6) unless the Secretary of State believes that the proposed alternative way of proceeding will operate against the public interest. (8) For the purposes of subsection (7) a proposed alternative way of proceeding will operate against the public interest only if any admissible public interest consideration or considerations outweigh the considerations which have led the CMA to propose proceeding in that way. (9) In deciding whether to withhold consent under subsection (6), the Secretary of State shall accept the CMA's view of what, if the only relevant consideration were how to remedy, mitigate or prevent the adverse effect on competition concerned or any detrimental effect on customers so far as resulting from the adverse effect on competition, would be the most appropriate way to proceed. (10) In this section “admissible public interest consideration” has the same meaning as in section 146A.

19

• (1) Section 149 (intervention notices under section 139(2)) is amended as follows.

• (2) In subsection (1)(c), for “case” substitute “ proposal to accept the undertaking ”.

• (3) In subsection (2), for “case” (in the second place where it occurs) substitute “ proposal to accept the undertaking ”.

20

In section 150 (power of veto of Secretary of State: undertakings in lieu), before subsection (1) insert—

(A1) Where an intervention notice under subsection 139(1) is in force, the CMA shall not, without the consent of the Secretary of State, accept any proposed undertaking under section 154 in relation to the matter concerned.

21

• (1) Section 151 (further interaction of intervention notices with general procedure) is amended as follows.

• (2) For subsection (1) substitute—

(1) Sections 134(1), (1A), (4), (6) and (7), 136(1) to (6), 137(1) to (6), 138 and 138A do not apply in relation to a restricted PI reference or a full PI reference.

• (3) In subsection (2), for the words from “, the Commission” to the end substitute “ at a time after the Secretary of State has made a restricted PI reference or a full PI reference, the CMA shall proceed as if the reference concerned had instead been made under section 131 (in accordance with the requirements imposed by this Part). ”

• (4) In subsection (4), for the words from “, the Commission shall” to the end substitute “ , the CMA shall proceed as if the restricted PI reference or (as the case may be) the full PI reference concerned had instead been made by the CMA under section 131 (in accordance with the requirements imposed by this Part). ”

• (5) For the heading, substitute “ Public interest intervention cases: interaction with general procedure ”.

22

In section 152 (certain duties in relation to providing information), omit subsection (2).

23

In section 155 (undertakings in lieu: procedural requirements), in subsection (3)(a), at the end insert “ or (but for the effect of section 140A(3)) it would have had power to make and which it would otherwise have intended to make ”.

24

• (1) Section 157 (interim undertakings: Part 4) is amended as follows.

• (2) In subsection (1)(b), after “143(3)” insert “ or (as the case may be) 143A(3) ”.

• (3) In subsection (6)—

• (a) in the definition of “pre-emptive action”, for “or (as the case may be) 147(2)” substitute “ , 147(2) or (as the case may be) 147A(2) ”, and

• (b) for the definition of “relevant authority” substitute—

“the relevant authority” means— (a) in the case of a restricted PI reference or a full PI reference, the Secretary of State; (b) in any other case, the CMA.

25

In section 158 (interim orders: Part 4), in subsection (1)(b), after “143(3)” insert “ or (as the case may be) 143A(3) ”.

26

In section 159 (final undertakings: Part 4), in subsection (2), after “147” insert “ or (as the case may be) 147A ”.

27

• (1) Section 160 (order-making power where final undertakings not fulfilled: Part 4) is amended as follows.

• (2) In subsection (2), for “or (as the case may be) 147(2)” substitute “ , 147(2) or (as the case may be) 147A(2) ”.

• (3) In subsection (3), for “or (as the case may be) 147” substitute “ or 147 or (as the case may be) subsections (3) and (4) of section 147A ”.

28

In section 161 (final orders: Part 4), in subsection (2), after “147” insert “ or (as the case may be) 147A ”.

29

In section 169 (certain duties of relevant authorities to consult: Part 4), in subsection (6)—

• (a) in the definition of “relevant authority”, at the end insert “ or the Secretary of State ”,

• (b) in the definition of “relevant decision”, in paragraph (b), after “appropriate Minister” (in the first place where it occurs) insert “ (other than the Secretary of State acting alone) ”, and

• (c) also in that definition, after paragraph (b) insert—

1. in the case of the Secretary of State, any decision by the Secretary of State—
2. to make a reference under section 132;
3. to vary under section 135 such a reference;
4. in a case where the Secretary of State is required to make a reference under section 140A, whether to make a reference under subsection (5) or (6) of that section; or
5. to vary under section 140B a reference made under section 140A(6).

30

• (1) Section 172 (further publicity requirements: Part 4) is amended as follows.

• (2) In subsection (1), in paragraph (a), after “section 131” insert “ , other than a reference treated as so made by virtue of section 140A(5)(b) ”.

• (3) In subsection (2), omit paragraph (d).

• (4) In subsection (3)—

• (a) after paragraph (d) insert—

(da) any reference made by him under section 140A(5) or (6); (db) any variation made by him under section 140B of a reference under section 140A(6);

, and

• (b) in paragraph (e), after “147(2)” insert “ or (as the case may be) 147A(2) ”.

• (5) In subsection (7), omit “or (2)(d)”.

• (6) In subsection (7A) (inserted by Schedule 12), at the end insert “ or (3)(da) ”.

• (7) In subsection (8), in paragraph (a), after “146(2)” insert “ or 146A(2) ”.

• (8) In subsection (10), after “147(2)” insert “ or 147A(2) ”.

31

In section 177 (excisions from reports: Part 4), in subsection (5), omit “, 143(2) and (5) to (7), 148(3) to (5)”.

32

• (1) Section 183 (interpretation: Part 4) is amended as follows.

• (2) In subsection (3), in paragraph (a), for the words before sub-paragraph (i) substitute “ where the reference is made under section 131 or 132— ”.

• (3) In that subsection, in paragraph (b)—

• (a) for the words before sub-paragraph (i) substitute “ where the reference is a restricted PI reference or a full PI reference— ”,

• (b) in sub-paragraph (i), after “143(1) or (3)” insert “ or (as the case may be) 143A(2) or (3) ”,

• (c) in sub-paragraph (ii), omit “(disregarding the fact that the notice was given)”,

• (d) in sub-paragraph (iii), after “143(1)” insert “ or (as the case may be) 143A(2) ”,

• (e) in sub-paragraph (iv), omit “(disregarding the fact that the notice was given)”,

• (f) for sub-paragraph (v) substitute—

(v) the Secretary of State has failed to make and publish a decision under subsection (2) of section 146 within the period permitted by subsection (3) of that section or (as the case may be) under subsection (2) of section 146A within the period permitted by subsection (6) of that section and the reference is finally determined under paragraph (a) above;

,

• (g) in sub-paragraph (vi), omit “(disregarding the fact that the notice was given)”,

• (h) after sub-paragraph (vi) insert—

(via) the Secretary of State has made no finding at all under section 146A(2) and the reference is finally determined under paragraph (a) above;

,

• (i) omit the “or” after sub-paragraph (vii),

• (j) after sub-paragraph (vii) insert—

(viia) the Secretary of State has made an adverse public interest finding under section 146A(2) but has decided under section 147A(2) neither to accept an undertaking under section 159 nor to make an order under section 161;

, and

• (k) after sub-paragraph (viii) insert

; or (ix) the Secretary of State has made an adverse public interest finding under section 146A(2) and has accepted an undertaking under section 159 or made an order under section 161.

• (4) In subsection (4)(c), after “(b)(viii)” insert “ or (ix) ”.

• (5) In subsection (5), for “or (vi)” substitute “ , (vi) or (via) ”.

• (6) In subsection (6), after “(b)(viii)” insert “ and (ix) ”.

33

• (1) Section 184 (index of defined expressions in Part 4) is amended as follows.

• (2) After the entry in the table for “Adverse effect on competition” insert—

Adverse public interest finding	Section 146A(3)

.

• (3) After the entry in the table for “Final determination of market investigation reference” insert—

Full PI reference	Section 140A(12)

.

• (4) After the entry in the table for “Public interest consideration being finalised” insert—

Public interest expert	Section 141B(4)

.

• (5) Before the entry in the table for “subordinate legislation” insert—

Restricted PI reference	Section 140A(12)

.

SCHEDULE 11

Enforcement of investigation powers

1

After section 174 of the 2002 Act insert—

(174A) (1) Where the CMA considers that a person has, without reasonable excuse, failed to comply with any requirement of a notice under section 174, it may impose a penalty in accordance with section 174D. (2) The CMA may proceed (whether at the same time or at different times) under subsection (1) and section 138A(3) in relation to the same failure. (3) Where the CMA considers that a person has intentionally obstructed or delayed another person in the exercise of its powers under section 174(7), it may impose a penalty in accordance with section 174D. (4) A person commits an offence if the person intentionally alters, suppresses or destroys any document which the person has been required to produce by a notice under section 174. (5) But a person does not commit an offence under subsection (4) in relation to any act which constitutes a failure to comply with a notice under section 174 if the CMA has proceeded against the person under subsection (1) in relation to that failure. (6) A person who commits an offence under subsection (4) is liable— (a) on summary conviction, to a fine not exceeding the statutory maximum; (b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine or to both. (7) The CMA shall not proceed against a person under subsection (1) in relation to an act which constitutes an offence under subsection (4) if that person has been found guilty of that offence. (8) In deciding whether and, if so, how to proceed under subsection (1) or (3) or section 138A(3), the CMA shall have regard to the statement of policy which was most recently published under section 174E at the time the failure or (as the case may be) the obstruction or delay concerned occurred. (9) In this section— (a) the reference to the production of a document includes a reference to the production of a legible and intelligible copy of information recorded otherwise than in legible form; and (b) the reference to suppressing a document includes a reference to destroying the means of reproducing information recorded otherwise than in legible form. (174B) (1) No penalty shall be imposed by virtue of section 174A(1) or (3) if more than 4 weeks have passed since the day which is the relevant day in the case in question; but this subsection shall not apply in relation to any variation or substitution of the penalty which is permitted by virtue of this Part. (2) In the following provisions of this section, “the section 174 power” means the power under section 174 to which the failure or (as the case may be) the obstruction or delay in question relates. (3) Where the section 174 power is exercised for the purpose mentioned in section 174(1)(a), the relevant day is the day when the CMA finally concludes the carrying out of its section 5 functions. (4) Where the section 174 power is exercised in connection with an enforcement function (within the meaning of that section), the relevant day is the day when the enforcement undertaking concerned is superseded or released or (as the case may be) the enforcement order concerned is revoked. (5) Except where subsection (3) or (4) applies, the relevant day is the day determined in accordance with the following provisions of this section. (6) Where the section 174 power is exercised for the purpose mentioned in section 174(1)(b) in connection with a matter that is the subject of a possible reference under section 131, the relevant day is the day when the CMA finally decides whether to make the reference. (7) Where the section 174 power is exercised for the purpose mentioned in section 174(1)(b) in connection with a matter that is the subject of a reference under section 131 or 132, the relevant day is the day when the reference is finally determined (see section 183). (8) Where the section 174 power is exercised for the purpose mentioned in section 174(1)(c) in connection with a matter that is the subject of a possible reference under section 140A(5) or (6), the relevant day is the day when the Secretary of State makes the reference. (9) Where the section 174 power is exercised for the purpose mentioned in section 174(1)(c) in connection with a matter that is the subject of a reference under section 140A(6), the relevant day is the day when the reference is finally determined (see section 183). (174C) (1) For the purpose of section 174B(3), the CMA finally concludes the carrying out of its section 5 functions if— (a) the CMA publishes the market study report under section 131B(4) or (as the case may be) gives it to the Secretary of State under section 140A(3)(b); or (b) the period permitted for the preparation by the CMA of the market study report and for the report to be published under section 131B(4) or (as the case may be) given to the Secretary of State under section 140A(3)(b) expires and no such report has been so prepared or no such action has been taken. (2) For the purpose of section 174B(3), the time when the CMA finally concludes the carrying out of its section 5 functions is— (a) in a case falling within subsection (1)(a), the publication of the report or (as the case may be) the giving of it to the Secretary of State; (b) in a case falling within subsection (1)(b), the expiry of the period concerned. (3) For the purpose of section 174B(6), the CMA finally decides whether to make a reference under section 131 if— (a) the CMA makes such a reference; (b) the CMA accepts an undertaking under section 154 instead of making such a reference; (c) the CMA publishes notice that it has otherwise decided not to make such a reference; or (d) the period permitted for the preparation by the CMA of a market study report in relation to the matter and for the report to be published under section 131B(4) has expired and no such report has been so prepared or published. (4) For the purpose of section 174B(6), the time when the CMA finally decides whether to make a reference under section 131 is— (a) in a case falling within subsection (3)(a), the making of the reference; (b) in a case falling within subsection (3)(b), the acceptance of the undertaking concerned; (c) in a case falling within subsection (3)(c), the publication of the notice concerned; (d) in a case falling within subsection (3)(d), the expiry of the period concerned. (5) In subsection (4)(b) the reference to the acceptance of the undertaking concerned shall, in a case where the CMA has accepted a group of undertakings under section 154, be treated as a reference to the acceptance of the last undertaking in the group; but undertakings which vary, supersede or revoke earlier undertakings shall be disregarded for the purposes of subsections (3)(b) and (4)(b). (174D) (1) A penalty imposed under section 174A(1) or (3) shall be of such amount as the CMA considers appropriate. (2) In the case of a penalty imposed under section 174A(1), the amount may be— (a) a fixed amount; (b) an amount calculated by reference to a daily rate; or (c) a combination of a fixed amount and an amount calculated by reference to a daily rate. (3) In the case of a penalty imposed under section 174A(3), the amount shall be a fixed amount. (4) A penalty imposed under section 174A(1) shall not— (a) in the case of a fixed amount, exceed such amount as the Secretary of State may by order specify; (b) in the case of an amount calculated by reference to a daily rate, exceed such amount per day as the Secretary of State may so specify; and (c) in the case of a fixed amount and an amount calculated by reference to a daily rate, exceed such fixed amount and such amount per day as the Secretary of State may so specify. (5) A penalty imposed under section 174A(3) shall not exceed such amount as the Secretary of State may by order specify. (6) An order under subsection (4) or (5) shall not specify— (a) in the case of a fixed amount, an amount exceeding £30,000; (b) in the case of an amount calculated by reference to a daily rate, an amount per day exceeding £15,000; and (c) in the case of a fixed amount and an amount calculated by reference to a daily rate, a fixed amount exceeding £30,000 and an amount per day exceeding £15,000. (7) Before making an order under subsection (4) or (5), the Secretary of State shall consult— (a) the CMA; and (b) such other persons as the Secretary of State considers appropriate. (8) In imposing a penalty by reference to a daily rate— (a) no account is to be taken of any days before the service on the person concerned of notice of the penalty under section 112 (as applied by subsection (10)); and (b) unless the CMA determines an earlier date (whether before or after the penalty is imposed), the amount payable ceases to accumulate at the beginning of the earliest of the days mentioned in subsection (9). (9) Those days are— (a) the day on which the requirement of the notice concerned under section 174 is satisfied; (b) the day which is the relevant day in the case in question for the purposes of section 174B. (10) Sections 112 to 115 apply in relation to a penalty imposed under section 174A(1) or (3) as they apply in relation to a penalty imposed under section 110(1) or (3). (174E) (1) The CMA shall prepare and publish a statement of policy in relation to the enforcement of notices given under section 174. (2) The statement shall, in particular, include a statement about the considerations relevant to the determination of the nature and amount of any penalty imposed under section 174A(1) or (3). (3) The CMA may revise its statement of policy and, where it does so, it shall publish the revised statement. (4) The CMA shall consult such persons as it considers appropriate when preparing or revising its statement of policy.

Investigation powers: miscellaneous consequential amendments

2

Part 4 of the 2002 Act (market investigations) is amended as follows.

3

Omit section 175 (enforcement of powers under section 174: offences).

4

Omit section 176 (investigation powers of the Commission).

5

In section 179 (review of decisions under Part 4), in subsection (2)(a), for “section 110(1) or (3) as applied by section 176” substitute “ section 174A(1) or (3) ”.

6

• (1) Section 181 (orders under Part 4) is amended as follows.

• (2) In subsection (4), for the words from “or 161,” to “section 176” substitute “ , 161, 174D(4) or (5), or under section 114(3)(b) or (4)(b) as applied by section 174D ”.

• (3) In subsection (10)—

• (a) omit “111(4) or (6) or”, and

• (b) for “176” substitute “ 174D ”.

SCHEDULE 12

Market studies and decisions whether to make a reference under section 131

1

Before section 131 of the 2002 Act (power to make market investigation references) insert—

(130A) (1) Where the CMA is proposing to carry out its functions under section 5 in relation to a matter for the purposes mentioned in subsection (2), the CMA must publish a notice under this section (referred to in this Part as a “market study notice”). (2) The purposes are— (a) to consider the extent to which a matter in relation to the acquisition or supply of goods or services of one or more than one description in the United Kingdom has or may have effects adverse to the interests of consumers; and (b) to assess the extent to which steps can and should be taken to remedy, mitigate or prevent any such adverse effects. (3) A market study notice shall, in particular, specify— (a) the matter in relation to which the CMA is proposing to carry out its functions under section 5; (b) the period during which representations may be made to the CMA in relation to the matter; and (c) the dates by which the CMA is required to comply with the requirements imposed on it by sections 131A and 131B.

2

After section 131 of that Act insert—

(131A) (1) This section applies to a case where the CMA has published a market study notice and— (a) the CMA is proposing to make a reference under section 131 in relation to the matter specified in the notice; or (b) a representation has been made to the CMA within the period specified in the notice under section 130A(3)(b) to the effect that such a reference should be made but the CMA is proposing not to make such a reference. (2) The CMA shall— (a) publish notice of the proposal concerned; and (b) consult the relevant persons about the proposal, in such manner as it considers practicable, before deciding whether to make a reference. (3) The CMA may, for the purposes of subsection (1), ignore any representation which it considers to be frivolous or vexatious. (4) For the purposes of subsection (2), a person is a “relevant person” if the CMA considers that its decision whether to make a reference is likely to have a substantial impact on the person's interests. (5) In consulting a person for the purposes of this section, the CMA shall, so far as practicable, give its reasons for the proposal. (6) In considering what is practicable for the purposes of this section, the CMA shall, in particular, have regard to— (a) the restrictions imposed by the time-table for making the decision (see section 131B); and (b) any need to keep what is proposed, or the reasons for it, confidential. (131B) (1) Where the CMA has published a market study notice in a case to which section 131A applies, the CMA shall, within the period of 6 months beginning with the date on which it publishes the notice— (a) publish the notice under section 131A(2)(a); and (b) begin the process of consultation under section 131A(2)(b) (but the CMA need not complete the process within that period). (2) Subsection (3) applies where— (a) the CMA has published a market study notice; (b) no representation has been made to the CMA within the period specified in the notice under section 130A(3)(b) to the effect that a reference under section 131 should be made in relation to the matter specified in the notice; and (c) the CMA has decided not to make such a reference. (3) The CMA shall, within the period of 6 months beginning with the date on which it publishes the market study notice, publish notice of the decision not to make a reference. (4) Where the CMA has published a market study notice it shall, within the period of 12 months beginning with the date on which it publishes the notice, prepare and publish a report (referred to in this Part as a “market study report”) which sets out— (a) the findings of the CMA in relation to the matter specified in the notice; and (b) the action (if any) which the CMA proposes to take in relation to the matter. (5) In a case to which section 131A applies, the market study report shall, in particular, contain— (a) the decision of the CMA to make a reference under section 131 in relation to the matter specified in the market study notice, the decision to accept an undertaking under section 154 instead of making such a reference or (as the case may be) the decision otherwise not to make such a reference; (b) the CMA's reasons for the decision; and (c) such information as the CMA considers appropriate for facilitating a proper understanding of its reasons for the decision. (6) Where a market study report contains a decision of the CMA to make a reference under section 131 in relation to a matter, the CMA shall, at the same time as it publishes the report, make the reference. (7) This section is subject to section 140A (duty of Secretary of State to refer in public interest intervention cases). (131C) (1) The Secretary of State may by order amend section 131B so as to alter one or more of the following periods— (a) the period of 6 months mentioned in subsection (1) or (3) or any period for the time being mentioned in either of those subsections in substitution for that period; (b) the period of 12 months mentioned in subsection (4) or any period for the time being there mentioned in substitution for that period. (2) But no alteration may be made by virtue of subsection (1) which results in— (a) the period for the time being mentioned in subsection (1) or (3) exceeding 6 months; or (b) the period for the time being mentioned in subsection (4) exceeding 12 months. (3) Before making an order under this section the Secretary of State shall consult the CMA and such other persons as the Secretary of State considers appropriate.

Market investigations and reports

3

• (1) Section 137 of the 2002 Act (time-limits for market investigations and reports) is amended as follows.

• (2) In subsection (1), for “two years” substitute “ 18 months ”.

• (3) After subsection (2) insert—

(2A) The CMA may extend, by no more than 6 months, the period within which its report under section 136 is to be prepared and published if it considers that there are special reasons for doing so. (2B) An extension under subsection (2A) shall come into force when published under section 172. (2C) No more than one extension is possible under subsection (2A).

• (4) For subsection (3) substitute—

(3) The Secretary of State may by order amend this section so as to alter one or more of the following periods— (a) the period of 18 months mentioned in subsection (1) or any period for the time being there mentioned in substitution for that period; (b) the period of 6 months mentioned in subsection (2A) or any period for the time being there mentioned in substitution for that period.

• (5) For subsection (4) substitute—

(4) But no alteration shall be made by virtue of subsection (3) which results in— (a) the period for the time being mentioned in subsection (1) exceeding 18 months; or (b) the period for the time being mentioned in subsection (2A) exceeding 6 months.

Remedies implementation

4

In section 138 of the 2002 Act (duty to remedy adverse effects), in subsection (2), after “shall,” insert “ within the period permitted by section 138A, ”.

5

After section 138 of that Act insert—

(138A) (1) The CMA shall discharge its duty under section 138(2) within the period of 6 months beginning with the date on which it publishes the report concerned under section 136. (2) The CMA may extend, by no more than 4 months, the period within which its duty under section 138(2) is required to be discharged if it considers that there are special reasons for doing so. (3) The CMA may extend the period within which its duty under section 138(2) is required to be discharged if it considers that— (a) a person has failed (whether with or without reasonable excuse) to comply with any requirement of a notice under section 174 which was given in relation to the reference; and (b) the failure is preventing the CMA from properly discharging its duty under section 138(2). (4) An extension under subsection (2) or (3) shall come into force when published under section 172. (5) An extension under subsection (3) continues in force until— (a) the person concerned provides the information or documents to the satisfaction of the CMA or (as the case may be) appears as a witness in accordance with the requirements of the CMA; or (b) the CMA publishes its decision to cancel the extension. (138B) (1) A period extended under section 138A(2) may also be extended under section 138A(3), and a period extended under section 138A(3) may also be extended under section 138A(2). (2) No more than one extension is possible under section 138A(2). (3) Where a period is extended or further extended under section 138A(2) or (3), the period as extended or (as the case may be) further extended shall, subject to subsections (4) and (5), be calculated by taking the period being extended and adding to it the period of the extension (whether or not those periods overlap in time). (4) Subsection (5) applies where— (a) the period within which the CMA shall discharge its duty under section 138(2) is further extended; (b) the further extension and at least one previous extension is made under section 138A(3); and (c) the same days or fractions of days are included in or comprise the further extension and are included in or comprise at least one such previous extension. (5) In calculating the period of the further extension, any days or fractions of days of the kind mentioned in subsection (4)(c) shall be disregarded. (6) The Secretary of State may by order amend section 138A so as to alter one or more of the following periods— (a) the period of 6 months mentioned in subsection (1) or any period for the time being there mentioned in substitution for that period; (b) the period of 4 months mentioned in subsection (2) or any period for the time being there mentioned in substitution for that period. (7) But no alteration shall be made by virtue of subsection (6) which results in— (a) the period for the time being mentioned in section 138A(1) exceeding 6 months; or (b) the period for the time being mentioned in section 138A(2) exceeding 4 months. (8) Before making an order under subsection (6) the Secretary of State shall consult the CMA and such other persons as the Secretary of State considers appropriate.

Time-limits: public interest intervention cases

6

• (1) Section 144 of the 2002 Act (time-limits for investigations and reports in public interest intervention cases) is amended as follows.

• (2) In subsection (1), for “two years” substitute “ 18 months ”.

• (3) After subsection (1A) (inserted by Schedule 10) insert—

(1B) The CMA may extend, by no more than 6 months, the period within which its report under section 142 is to be prepared and action is to be taken in relation to it under section 143(1) or (3) or (as the case may be) 143A(2) or (3) if it considers that there are special reasons for doing so. (1C) An extension under subsection (1B) shall come into force when published under section 172. (1D) No more than one extension is possible under subsection (1B).

• (4) In subsection (2)—

• (a) after “amend” insert

— (a)

,

• (b) for “two years” substitute “ 18 months ”, and

• (c) at the end insert

; (b) subsection (1B) so as to alter the period of 6 months mentioned in that subsection or any period for the time being mentioned in that subsection in substitution for that period.

• (5) In subsection (3)—

• (a) after “results in” insert

— (a)

,

• (b) for “two years” substitute “ 18 months ”, and

• (c) at the end insert

;or (b) the period for the time being mentioned in subsection (1B) exceeding 6 months.

Time-limits: consequential and other minor amendments

7

Part 4 of the 2002 Act (market investigations) is amended as follows.

8

In the heading of that Part, at the beginning insert “ Market Studies and ”.

9

In the heading of Chapter 1, at the beginning insert “ Market Studies and ”.

10

• (1) Section 132 (ministerial power to make references) is amended as follows.

• (2) In subsection (1)—

• (a) after “services” insert

— (a)

, and

• (b) at the end insert

; and (b) in a case in which the CMA has published a market study notice under section 130A, the period permitted by section 131B for the preparation and publication by the CMA of the market study report has expired.

• (3) In subsection (2)(b), for “to make such a reference” substitute “ to publish a market study notice in relation to the matter concerned ”.

11

In section 135 (variation of references), omit subsection (4).

12

In section 156 (effect of undertakings under section 154), after subsection (2) insert—

(3) The expiry of the period mentioned in section 131B(4) does not prevent the making of a market investigation reference if the CMA has accepted an undertaking or group of undertakings under section 154 and— (a) the CMA considers that any undertaking concerned has been breached and has given notice of that fact to the person responsible for giving the undertaking; or (b) the person responsible for giving any undertaking concerned supplied, in connection with the matter, information to the OFT which was false or misleading in a material respect.

13

In section 169 (certain duties of relevant authorities to consult: Part 4), in subsection (6), in the definition of “relevant decision”—

• (a) in paragraph (a), for sub-paragraph (i) substitute—

(i) to make a reference under section 131 in a case where the CMA has not published a market study notice under section 130A in relation to the matter concerned; (ia) as to whether to accept undertakings under section 154 instead of making any reference under section 131;

, and

• (b) in paragraph (b)(i), omit “as to whether”.

14

• (1) Section 172 (further publicity requirements: Part 4) is amended as follows.

• (2) In subsection (1), after paragraph (a) insert—

(aa) any decision not to make a reference under section 131 following a consultation in relation to the matter concerned under section 169;

.

• (3) In subsection (2)—

• (a) before paragraph (a) insert—

(za) any extension by it under section 137 of the period within which a report under section 136 is to be prepared and published; (zb) any extension by it under section 138A of the period within which its duty under section 138(2) is to be discharged;

, and

• (b) after paragraph (b) insert—

(ba) any extension by it under section 144 of the period within which a report under section 142 is to be prepared and action is to be taken in relation to it;

.

• (4) After subsection (7) insert—

(7A) Subsection (6) shall not apply in relation to any case falling within subsection (1)(a).

15

In section 179 (review of decisions under Part 4), in subsection (2), before paragraph (a) insert—

(za) does not include a decision whether to carry out functions under section 5 in a case where the CMA is, or would have been, required to publish a market study notice (see section 130A(1));

.

16

• (1) Section 181 (orders under Part 4) is amended as follows.

• (2) In subsection (3), for “136(9), 137(3)” substitute “ 131C(1), 136(9), 137(3), 138B(6) ”.

• (3) In subsection (4), for “137(3)” substitute “ 131C(1), 137(3), 138B(6) ”.

17

In section 184 (index of defined expressions in Part 4), after the entry in the table for “market investigation reference” insert—

Market study notice	Section 130A(1)
“Market study report	Section 131B(4)

SCHEDULE 13

1

The 1998 Act is amended as follows.

2

• (1) Section 28 (power to enter business premises under a warrant) is amended as follows.

• (2) In subsection (1), for the words before paragraph (a) substitute “ On an application made to it by the CMA, the court or the Tribunal may issue a warrant if it is satisfied that— ”.

• (3) In subsection (3), for “the judge” substitute “ the court or (as the case may be) the Tribunal ”.

• (4) After subsection (7) insert—

(7A) An application for a warrant under this section must be made— (a) in the case of an application to the court, in accordance with rules of court; (b) in the case of an application to the Tribunal, in accordance with Tribunal rules.

3

• (1) Section 28A (power to enter domestic premises under a warrant) is amended as follows.

• (2) In subsection (1), for the words before paragraph (a) substitute “ On an application made to it by the CMA, the court or the Tribunal may issue a warrant if it is satisfied that— ”.

• (3) In subsection (3), for “the judge” substitute “ the court or (as the case may be) the Tribunal ”.

• (4) After subsection (8) insert—

(8A) An application for a warrant under this section must be made— (a) in the case of an application to the court, in accordance with rules of court; (b) in the case of an application to the Tribunal, in accordance with Tribunal rules.

4

In section 61 (interpretation of Part 2), after the definition of “the Treaty” insert—

“the Tribunal” means the Competition Appeal Tribunal;” “Tribunal rules” means rules under section 15 of the Enterprise Act 2002.”

.

5

• (1) Section 62 (power to enter business premises under a warrant: Article 20 inspections) is amended as follows.

• (2) In subsection (1), for the words before paragraph (a) substitute “ On an application made to it by the CMA, the High Court or the Tribunal must issue a warrant if it is satisfied that— ”.

• (3) After subsection (8) insert—

(8A) An application for a warrant under this section must be made— (a) in the case of an application to the High Court, in accordance with rules of court; (b) in the case of an application to the Tribunal, in accordance with Tribunal rules.

6

• (1) Section 62A (power to enter non-business premises under a warrant: Article 21 inspections) is amended as follows.

• (2) In subsection (1), for the words before paragraph (a) substitute “ On an application made to it by the CMA, the High Court or the Tribunal must issue a warrant if it is satisfied that— ”.

• (3) After subsection (10) insert—

(10A) An application for a warrant under this section must be made— (a) in the case of an application to the High Court, in accordance with rules of court; (b) in the case of an application to the Tribunal, in accordance with Tribunal rules.

7

• (1) Section 63 (power to enter business premises under a warrant: Article 22(2) inspections) is amended as follows.

• (2) In subsection (1), for the words before paragraph (a) substitute “ On an application made to it by the CMA, the High Court or the Tribunal must issue a warrant if it is satisfied that— ”.

• (3) After subsection (8) insert—

(8A) An application for a warrant under this section must be made— (a) in the case of an application to the High Court, in accordance with rules of court; (b) in the case of an application to the Tribunal, in accordance with Tribunal rules.

8

In section 65C (interpretation of Part 2A), in subsection (2), after the entry for “the Treaty” (but before the “and” following it) insert—

“the Tribunal;” “Tribunal rules;”

.

9

• (1) Section 65G (power to enter business premises under a warrant: Article 22(1) investigations) is amended as follows.

• (2) In subsection (1), for the words before paragraph (a) substitute “ On an application made to it by the CMA, the court or the Tribunal may issue a warrant if it is satisfied that— ”.

• (3) In subsection (3), for “the judge” substitute “ the court or (as the case may be) the Tribunal ”.

• (4) After subsection (8) insert—

(8A) An application for a warrant under this section must be made— (a) in the case of an application to the court, in accordance with rules of court; (b) in the case of an application to the Tribunal, in accordance with Tribunal rules.

10

• (1) Section 65H (power to enter domestic premises under a warrant: Article 22(1) investigations) is amended as follows.

• (2) In subsection (1), for the words before paragraph (a) substitute “ On an application made to it by the CMA, the court or the Tribunal may issue a warrant if it is satisfied that— ”.

• (3) In subsection (3), for “the judge” substitute “ the court or (as the case may be) the Tribunal ”.

• (4) After subsection (8) insert—

(8A) An application for a warrant under this section must be made— (a) in the case of an application to the court, in accordance with rules of court; (b) in the case of an application to the Tribunal, in accordance with Tribunal rules.

SCHEDULE 14

Gas Act 1986 (c. 44)

1

The Gas Act 1986 is amended as follows.

2

• (1) Section 28 (orders for securing compliance) is amended as follows.

• (2) In subsections (1), (2) and (4), for “(5) and” (in each place where it occurs) substitute “ (4A) to ”.

• (3) After subsection (4) insert—

(4A) Before making a final order or making or confirming a provisional order, the Authority shall consider whether it would be more appropriate to proceed under the Competition Act 1998. (4B) The Authority shall not make a final order or make or confirm a provisional order if it considers that it would be more appropriate to proceed under the Competition Act 1998.

• (4) In subsection (5), omit paragraph (c) and the “or” preceding it.

• (5) In subsection (6)—

• (a) in the words before paragraph (a), after “the Authority” insert “ decides that it would be more appropriate to proceed under the Competition Act 1998 or ”, and

• (b) in paragraph (a), after “that it” insert “ has so decided or ”.

3

In section 30A (penalties), for subsection (2) substitute—

(2) Before imposing a penalty on a regulated person under subsection (1), the Authority shall consider whether it would be more appropriate to proceed under the Competition Act 1998. (2A) The Authority shall not impose a penalty on a regulated person under subsection (1) if it considers that it would be more appropriate to proceed under the Competition Act 1998.

Electricity Act 1989 (c. 29)

4

The Electricity Act 1989 is amended as follows.

5

• (1) Section 25 (orders for securing compliance) is amended as follows.

• (2) In subsections (1), (2) and (4), for “(5) and” (in each place where it occurs) substitute “ (4A) to ”.

• (3) After subsection (4) insert—

(4A) Before making a final order or making or confirming a provisional order, the Authority shall consider whether it would be more appropriate to proceed under the Competition Act 1998. (4B) The Authority shall not make a final order or make or confirm a provisional order if it considers that it would be more appropriate to proceed under the Competition Act 1998.

• (4) In subsection (5), omit paragraph (d) and the “or” preceding it.

• (5) In subsection (6)—

• (a) in the words before paragraph (a), after “the Authority” insert “ decides that it would be more appropriate to proceed under the Competition Act 1998 or ”, and

• (b) in paragraph (a), after “that it” insert “ has so decided or ”.

6

In section 27A (penalties), for subsection (2) substitute—

(2) Before imposing a penalty on a regulated person under subsection (1), the Authority shall consider whether it would be more appropriate to proceed under the Competition Act 1998. (2A) The Authority shall not impose a penalty on a regulated person under subsection (1) if it considers that it would be more appropriate to proceed under the Competition Act 1998.

7

In section 43 (functions with respect to competition), in subsection (6), for the words from the beginning to “(3) above” substitute “ If any question arises as to whether subsection (2) or (3) above applies to any particular case ”.

Water Industry Act 1991 (c. 56)

8

The Water Industry Act 1991 is amended as follows.

9

• (1) Section 19 (exception to duty to enforce) is amended as follows.

• (2) For subsection (1A) substitute—

(1A) Before making an enforcement order or confirming a provisional enforcement order, the Authority shall consider whether it would be more appropriate to proceed under the Competition Act 1998. (1B) The Authority shall not make an enforcement order or confirm a provisional enforcement order if it considers that it would be more appropriate to proceed under the Competition Act 1998.

• (3) In subsection (3)—

• (a) in the words before paragraph (a), for “is satisfied as mentioned in subsection (1A) above” substitute “ has decided that it would be more appropriate to proceed under the Competition Act 1998 ”, and

• (b) in paragraph (a), after “satisfied” insert “ or has so decided ”.

10

In section 22A (penalties), for subsection (13) substitute—

(13) Before imposing a penalty under this section, the Authority shall consider whether it would be more appropriate to proceed under the Competition Act 1998. (14) The Authority shall not impose a penalty under this section if it considers that it would be more appropriate to proceed under the Competition Act 1998.

Railways Act 1993 (c. 43)

11

The Railways Act 1993 is amended as follows.

12

• (1) Section 55 (orders for securing compliance) is amended as follows.

• (2) For subsection (5A) substitute—

(5A) Before making a final order or making or confirming a provisional order, the Office of Rail Regulation shall consider whether it would be more appropriate to proceed under the Competition Act 1998. (5AA) The Office of Rail Regulation shall not make a final order or make or confirm a provisional order if it considers that it would be more appropriate to proceed under the Competition Act 1998.

• (3) In subsection (5D)(b), for “(5A)” substitute “ (5AA) ”.

13

In section 57A (penalties), for subsection (6) substitute—

(6) Before imposing a penalty under this section, the Office of Rail Regulation shall consider whether it would be more appropriate to proceed under the Competition Act 1998. (7) The Office of Rail Regulation shall not impose a penalty under this section if it considers that it would be more appropriate to proceed under the Competition Act 1998.

14

In section 67 (functions of the Office of Rail Regulation with respect to competition), in subsection (8), for the words from the beginning to “(3) above” substitute “ If any question arises as to whether subsection (2) or (3) above applies to any particular case ”.

Transport Act 2000 (c. 38)

15

• (1) Section 21 of the Transport Act 2000 (exceptions to duties to secure compliance) is amended as follows.

• (2) In subsection (1), omit paragraph (b) and the “or” preceding it.

• (3) After subsection (5) insert—

(6) Before making a final order or making or confirming a provisional order, the CAA must consider whether it would be more appropriate to proceed under the Competition Act 1998. (7) The CAA must not make a final order or make or confirm a provisional order to the extent that it considers that it would be more appropriate to proceed under the Competition Act 1998.

Communications Act 2003 (c. 21)

16

The Communications Act 2003 is amended as follows.

17

In section 94 (notification of contravention of SMP apparatus conditions), for subsection (10) substitute—

(10) Before giving a notification under this section, OFCOM must consider whether it would be more appropriate to proceed under the Competition Act 1998. (10A) OFCOM must not give a notification under this section if they consider that it would be more appropriate to proceed under the Competition Act 1998. (10B) In a case where OFCOM decide that it would be more appropriate to proceed under the Competition Act 1998, they must publish a statement to that effect in such manner as they consider appropriate for bringing their decision to the attention of persons whom they consider are likely to be affected by it.

18

In section 96A (notification of contravention of condition other than SMP apparatus condition), for subsection (5) substitute—

(5) Before giving a notification under this section, OFCOM must consider whether it would be more appropriate to proceed under the Competition Act 1998. (6) OFCOM must not give a notification under this section if they consider that it would be more appropriate to proceed under the Competition Act 1998. (7) In a case where OFCOM decide that it would be more appropriate to proceed under the Competition Act 1998, they must publish a statement to that effect in such manner as they consider appropriate for bringing their decision to the attention of persons whom they consider are likely to be affected by it.

Postal Services Act 2011 (c. 5)

19

In Schedule 7 to the Postal Services Act 2011 (enforcement of regulatory requirements) for paragraph 4 substitute—

(4) (1) Before giving a notification under paragraph 2, OFCOM must consider whether it would be more appropriate to proceed under the Competition Act 1998. (2) OFCOM must not give a notification under paragraph 2 if they consider that it would be more appropriate to proceed under the Competition Act 1998. (3) In a case where OFCOM decide that it would be more appropriate to proceed under the Competition Act 1998, they must publish a statement to that effect in such manner as they consider appropriate for bringing their decision to the attention of persons whom they consider are likely to be affected by it.

Health and Social Care Act 2012 (c. 7)

20

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

21

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

22

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

The Electricity (Northern Ireland) Order 1992 (S.I. 1992/231 (N.I. 1))

23

In article 46 of the Electricity (Northern Ireland) Order 1992, in paragraph (6), for the words from the beginning to “(2A) or (3)” substitute “ If any question arises as to whether paragraph (2) or (3) applies to any particular case ”.

The Energy (Northern Ireland) Order 2003 (S.I. 2003/419 (N.I. 6))

24

The Energy (Northern Ireland) Order 2003 is amended as follows.

25

• (1) Article 42 (orders for securing compliance) is amended as follows.

• (2) In paragraph (1), for “, (5) and” substitute “ and (5) to ”.

• (3) In paragraphs (2) and (4), for “(5) and” substitute “ (5) to ”.

• (4) In paragraph (5), omit sub-paragraph (b) and the “or” preceding it.

• (5) After that paragraph insert—

(5A) Before making a final order or making or confirming a provisional order in relation to a licence holder, the Authority shall consider whether it would be more appropriate to proceed under the Competition Act 1998. (5B) The Authority shall not make a final order or make or confirm a provisional order in relation to a licence holder if it considers that it would be more appropriate to proceed under the Competition Act 1998.

• (6) In paragraph (7)—

• (a) in the words before sub-paragraph (a), after “(6)” insert “ or decides that it would be more appropriate to proceed under the Competition Act 1998 ”, and

• (b) in sub-paragraph (a), after “satisfied” insert “ or has so decided ”.

26

In article 45 (financial penalties), for paragraph (3) substitute—

(3) Before imposing a penalty under paragraph (1) or (2) the Authority shall consider whether it would be more appropriate to proceed under the Competition Act 1998. (3A) The Authority shall not impose a penalty under paragraph (1) or (2) if it considers that it would be more appropriate to proceed under the Competition Act 1998.

The Water and Sewerage Services (Northern Ireland) Order 2006 (S.I. 2006/3336 (N.I. 21))

27

The Water and Sewerage Services (Northern Ireland) Order 2006 is amended as follows.

28

• (1) Article 31 (exceptions to duty to enforce) is amended as follows.

• (2) In paragraph (1), omit sub-paragraph (d) and the “or” preceding it.

• (3) After that paragraph insert—

(1A) Before making an enforcement order or confirming a provisional enforcement order under Article 30, the Authority shall consider whether it would be more appropriate to proceed under the Competition Act 1998. (1B) The Authority shall not make an enforcement order or confirm a provisional enforcement order under that Article if it considers that it would be more appropriate to proceed under the Competition Act 1998.

• (4) In paragraph (3)—

• (a) in the words before sub-paragraph (a)—

• (i) for “, (c) or (d)” substitute “ or (c) ”, and

• (ii) after “paragraph (1)” insert “ or decides that it would be more appropriate to proceed under the Competition Act 1998 ”, and

• (b) in sub-paragraph (a), after “so satisfied” insert “ or has so decided ”.

29

In article 35 (financial penalties), for paragraph (11) substitute—

(11) Before imposing a penalty under this Article the Authority shall consider whether it would be more appropriate to proceed under the Competition Act 1998. (12) The Authority shall not impose a penalty under this Article if it considers that it would be more appropriate to proceed under the Competition Act 1998.

SCHEDULE 15

Civil Aviation Act 1982 (c. 16)

1

In Schedule 1 to the Civil Aviation Act 1982 (constitution etc. of the Authority), in paragraph 15—

• (a) the existing text becomes sub-paragraph (1), and

• (b) after that sub-paragraph insert—

(2) The power in sub-paragraph (1) is subject to provision in rules made under section 51 of the Competition Act 1998 by virtue of paragraph 1A of Schedule 9 to that Act in respect of the exercise of a function under Part 1 of that Act.

Gas Act 1986 (c. 44)

2

In section 36A of the Gas Act 1986 (functions with respect to competition), in subsections (3), (3A) and (7)(b), after “38(1) to (6)” (in each place where it occurs) insert “ , 40B(1) to (4) ”.

Electricity Act 1989 (c. 29)

3

In section 43 of the Electricity Act 1989 (functions with respect to competition), in subsections (3), (3A) and (6)(b), after “38(1) to (6)” (in each place where it occurs) insert “ , 40B(1) to (4) ”.

Water Industry Act 1991 (c. 56)

4

The Water Industry Act 1991 is amended as follows.

5

In section 31 (functions with respect to competition), in subsections (3), (4A) and (8)(b), after “38(1) to (6)” (in each place where it occurs) insert “ , 40B(1) to (4) ”.

6

In Schedule 1A (constitution etc. of the Authority), in paragraph 10, after sub-paragraph (2) insert—

(3) Sub-paragraph (1) is subject to provision in rules made under section 51 of the Competition Act 1998 by virtue of paragraph 1A of Schedule 9 to that Act in respect of the exercise of a function under Part 1 of that Act.

Railways Act 1993 (c. 43)

7

In section 67 of the Railways Act 1993 (functions with respect to competition), in subsections (3), (3A) and (8)(b), after “38(1) to (6)” (in each place where it occurs) insert “ , 40B(1) to (4) ”.

Competition Act 1998 (c. 41)

8

The Competition Act 1998 is amended as follows.

9

In section 26 (powers when conducting investigations), in subsection (3)(b), for “42 to” substitute “ 43 and ”.

10

In section 38 (guidance on level of penalties), in subsection (9), for “an appeal tribunal” substitute “ the Tribunal ”.

11

In section 54 (regulators), in subsection (1)—

• (a) omit paragraph (c), and

• (b) for paragraph (f) substitute—

(f) the Northern Ireland Authority for Utility Regulation;

.

12

• (1) Schedule 1 (exclusions: mergers and concentrations) is amended as follows.

• (2) In paragraph 5—

• (a) omit “to the Competition Commission” (in each place where it occurs), and

• (b) for “the Commission” (in each place where it occurs) substitute “ the CMA ”.

Utilities Act 2000 (c. 27)

13

In Schedule 1 to the Utilities Act 2000 (constitution etc. of the Authority), in paragraph 9, after sub-paragraph (2) insert—

(2A) Sub-paragraph (1) is subject to provision in rules made under section 51 of the Competition Act 1998 by virtue of paragraph 1A of Schedule 9 to that Act in respect of the exercise of a function under Part 1 of that Act.

Transport Act 2000 (c. 38)

14

In section 86 of the Transport Act 2000 (functions with respect to competition), in subsections (3), (4)(b) and (7)(b), after “38(1) to (6)” (in each place where it occurs) insert “ , 40B(1) to (4) ”.

Enterprise Act 2002 (c. 40)

15

The Enterprise Act 2002 is amended as follows.

16

• (1) Section 25 (extension of time-limits) is amended as follows.

• (2) In subsection (2), for the words from “has failed” to the end of the subsection substitute “ has failed (with or without a reasonable excuse) to comply with any requirement of a notice under section 109 ”.

• (3) For subsection (3) substitute—

(3) An extension under subsection (2) shall come into force when notice of the extension is given and end— (a) when the person concerned provides the information or documents to the satisfaction of the CMA or (as the case may be) appears as a witness in accordance with the requirements of the CMA; or (b) if earlier, the CMA cancels the extension.

17

Omit section 31 (information powers in relation to completed mergers).

18

• (1) Section 32 (supplementary provision for purposes of sections 25 and 31) is amended as follows.

• (2) Omit subsections (1) to (3).

• (3) In subsection (4), omit “or subsection (3)(a) above”.

• (4) In the heading, for “sections 25 and 31” substitute “ section 25 ”.

19

• (1) Section 34A (duty where case referred by European Commission) is amended as follows.

• (2) For subsection (5) substitute—

(5) The CMA may extend the preliminary assessment period if it considers that any of the persons carrying on the enterprises concerned has failed (whether with or without reasonable excuse) to comply with any requirement of a notice under section 109.

• (3) For subsection (6) substitute—

(6) An extension under subsection (5) shall come into force when published under section 107. (6A) An extension under subsection (5) shall continue in force until— (a) the person concerned provides the information or documents to the satisfaction of the CMA or (as the case may be) appears as a witness in accordance with the requirements of the CMA; or (b) the CMA publishes its decision to cancel the extension.

• (4) Omit subsection (7).

20

Omit section 34B (power to request information in referred cases).

21

• (1) Section 42 (intervention by Secretary of State in certain public interest cases) is amended as follows.

• (2) In subsection (1), in paragraph (d)(i)—

• (a) for “section 22(3)(a) or (e)” substitute “ section 22(3)(za), (a) or (e) ”, and

• (b) for “33(3)(a) or (e)” substitute “ 33(3)(za), (a) or (e) ”.

• (3) In subsection (5), for “to 32” substitute “ to 30 ”.

• (4) In subsection (6), in the words before paragraph (a), for “to 32” substitute “ to 30 ”.

• (5) In that subsection, in paragraph (b), for “sections 25(1) to (3), (6) and (8) and 31” substitute “ section 25(1) to (3), (6) and (8) ”.

• (6) In that subsection, in paragraph (h)—

• (a) omit “, and the power to request information under section 31(1) as so applied,”, and

• (b) after “existing time-limits” insert “ by virtue of section 24 (as so applied) ”.

• (7) In that subsection, in paragraph (i), after “existing time-limits” insert “ by virtue of section 24 (as so applied) ”.

• (8) In that subsection, omit paragraph (j).

• (9) In that subsection, in paragraph (k), for “to 32” substitute “ to 30 ”.

• (10) In that subsection, omit paragraph (l) and the word “and” immediately preceding it.

22

In section 46 (references under section 45: supplementary), in subsection (1)(a), omit “or 96(3)”.

23

• (1) Section 46B (extension of preliminary assessment period) is amended as follows.

• (2) For subsection (1) substitute—

(1) The CMA may extend the preliminary assessment period for the purposes of section 46A if it considers that any of the persons carrying on the enterprises concerned has failed (whether with or without reasonable excuse) to comply with any requirement of a notice under section 109.

• (3) Omit subsection (2).

• (4) For subsection (3) substitute—

(3) An extension under subsection (1) shall come into force when published under section 107. (3A) An extension under subsection (1) shall continue in force until— (a) the person concerned provides the information or documents to the satisfaction of the CMA or (as the case may be) appears as a witness in accordance with the requirements of the CMA; or (b) the CMA publishes its decision to cancel the extension.

• (5) Omit subsection (4).

24

Omit section 46C (power to request information in referred cases).

25

• (1) Section 49 (variation of references under section 45) is amended as follows.

• (2) In subsection (2), omit “1,”.

• (3) In subsection (3), omit “1,”.

• (4) In subsection (4) —

• (a) omit “any undertaking accepted under paragraph 1 of Schedule 7, or”, and

• (b) for “that Schedule” substitute “ Schedule 7 ”.

• (5) In subsection (5)—

• (a) omit “undertaking or” (in each place where it occurs),

• (b) omit “, accepted or” (in each place where it occurs), and

• (c) omit “, superseded, released”.

26

• (1) Section 59 (intervention by Secretary of State in special public interest cases) is amended as follows.

• (2) In subsection (5), for “to 32” substitute “ to 30 ”.

• (3) In subsection (6), in the words before paragraph (a), for “to 32” substitute “ to 30 ”.

• (4) In that subsection, in paragraph (c), for “sections 25(1) to (3), (6) and (8) and 31” substitute “ section 25(1) to (3), (6) and (8) ”.

• (5) In that subsection, in paragraph (g), omit “, and the power to request information under section 31(1) as so applied,”.

• (6) In that subsection, omit paragraph (h).

• (7) In that subsection, in paragraph (i), for “to 32” substitute “ to 30 ”.

• (8) In that subsection, omit paragraph (j) and the word “and” immediately preceding it.

27

• (1) Section 64 (cancellation and variation of references under section 62) is amended as follows.

• (2) In subsection (3), omit “1,”.

• (3) In subsection (4)—

• (a) omit “any undertaking accepted under paragraph 1 of Schedule 7, or”, and

• (b) for “that Schedule” substitute “ Schedule 7 ”.

• (4) In subsection (5)—

• (a) omit “undertaking or” (in each place where it occurs),

• (b) omit “, accepted or” (in each place where it occurs), and

• (c) omit “, superseded, released”.

28

• (1) Section 67 (intervention to protect legitimate interests) is amended as follows.

• (2) In subsection (7), for “to 32” substitute “ to 30 ”.

• (3) In subsection (8), in the words before paragraph (a), for “to 32” substitute “ to 30 ”.

• (4) In that subsection, in paragraph (d), for “sections 25, 31 and 32” substitute “ section 25 ”.

29

In section 68 (scheme for protecting legitimate interests), in subsection (4)(a), for “to 32” substitute “ to 30 ”.

30

In section 77 (restrictions on certain share dealings: completed mergers), in subsection (1)(b), omit “71 or”.

31

In section 78 (restrictions on certain share dealings: anticipated mergers), in subsection (1)(b), for “section 81” substitute “ section 72 or 81 ”.

32

In section 89 (subject matter of undertakings), in subsection (2)—

• (a) omit “71,”, and

• (b) omit “1,”.

33

• (1) Section 93 (further role of OFT in relation to undertakings and orders) is amended as follows.

• (2) In subsection (1), in paragraph (b), omit “1,”.

• (3) In subsection (2), omit “1,”.

• (4) In subsection (4), omit “1,”.

34

In section 94 (rights to enforce undertakings and orders), in subsection (8), omit “1,”.

35

• (1) Section 99 (functions in relation to merger notices) is amended as follows.

• (2) Omit subsections (2) to (4).

• (3) In subsection (5), in paragraph (c), for the words from “or any” to “as required” substitute “ or the person who gave the merger notice has failed (with or without a reasonable excuse) to comply with any requirement of a notice under section 109 in relation to the case concerned ”.

36

• (1) Section 107 (further publicity requirements) is amended as follows.

• (2) In subsection (1), for paragraph (a) substitute—

(a) any decision made by it that the duty to make a reference under section 22 or 33 applies and any such reference made by it; (aa) any decision made by it that the duty to make such a reference does not apply (other than a decision made by virtue of subsection (2)(b) of section 33);

.

• (3) In that subsection, after paragraph (aa) insert—

(ab) any notice given by it as mentioned in paragraph (b) of the definition of “initial period” in section 34ZA(3); (ac) any extension by it under section 34ZB of the initial period; (ad) any decision made by it to cancel an extension as mentioned in section 34ZB(7)(b); (ae) any extension by it under section 34A of the preliminary assessment period; (af) any decision made by it to cancel an extension as mentioned in section 34A(6A)(b);. (ag) any extension by it under section 46B of the preliminary assessment period; (ah) any decision made by it to cancel an extension as mentioned in section 46B(3A)(b);

.

• (4) In that subsection, omit paragraph (d).

• (5) In that subsection, after paragraph (e) insert—

(ea) any notice given by it under section 73A(2)(b); (eb) any extension by it under section 73A of the period for considering whether to accept an undertaking under section 73; (ec) any decision made by it to cancel an extension as mentioned in section 73A(11)(b);

.

• (6) In that subsection, in paragraph (f), for “such an undertaking or order” substitute “ an order mentioned in paragraph (e) ”.

• (7) At the end of that subsection insert

; and (i) any notice given by it under section 96(2A).

• (8) In subsection (2), after paragraph (e) insert—

(ea) any extension by it under section 41A of the period within which its duty under section 41(2) is to be discharged; (eb) any decision made by it to cancel an extension as mentioned in section 41A(7)(b);

.

• (9) In subsection (3), omit paragraphs (h) and (i).

37

In section 130 (index of defined expressions), omit the entry for “Undertakings under paragraph 1 of Schedule 7”.

38

• (1) Schedule 7 (enforcement regime for public interest and special public interest cases) is amended as follows.

• (2) In paragraph 7, in sub-paragraph (1), for paragraph (b) substitute—

(b) no orders under paragraph 2 are in force in relation to the relevant merger situation concerned or (as the case may be) the special merger situation concerned.

• (3) In paragraph 8, in sub-paragraph (1), for paragraph (b) substitute—

(b) no orders under paragraph 2 are in force in relation to the relevant merger situation concerned or (as the case may be) the special merger situation concerned.

39

In Schedule 15 (enactments conferring functions for the purposes of which specified information may be disclosed), at the end insert— “ The Health and Social Care Act 2012. ”

Office of Communications Act 2002 (c. 11)

40

In Schedule 1 to the Office of Communications Act 2002 (constitution etc. of the OFCOM), in paragraph 18—

• (a) the existing text becomes sub-paragraph (1), and

• (b) after that sub-paragraph insert—

(2) Sub-paragraph (1) is subject to provision in rules made under section 51 of the Competition Act 1998 by virtue of paragraph 1A of Schedule 9 to that Act in respect of the exercise of a function under Part 1 of that Act.

Railways and Transport Safety Act 2003 (c. 20)

41

In Schedule 1 to the Rail and Transport Safety Act 2003 (constitution etc. of the Office of Rail Regulation), in paragraph 7—

• (a) the existing text becomes sub-paragraph (1), and

• (b) after that sub-paragraph insert—

(2) Sub-paragraph (1) is subject to provision in rules made under section 51 of the Competition Act 1998 by virtue of paragraph 1A of Schedule 9 to that Act in respect of the exercise of a function under Part 1 of that Act.

Communications Act 2003 (c. 21)

42

The Communications Act 2003 is amended as follows.

43

• (1) Section 192 (appeals against decisions by OFCOM etc) is amended as follows.

• (2) In subsection (1), after paragraph (d) insert—

(e) a decision by the CMA to which effect is given by an order made under section 193A.

• (3) In subsection (6)(b), after “the Secretary of State” insert “ , by the CMA ”.

44

In section 193 (reference of price control matters), in subsection (10), after “this section” insert “ and section 193A ”.

45

In section 195 (decisions of the Tribunal), in subsection (9), for “or the Secretary of State” (in each place it occurs) substitute “ , the Secretary of State or the CMA ”.

46

In section 371 (functions under the Competition Act 1998), in subsections (2) and (3)(a), after “38(1) to (6)” (in each place where it occurs) insert “ , 40B(1) to (4) ”.

Health and Social Care Act 2012 (c. 7)

47

The Health and Social Care 2012 is amended as follows.

48

In section 72 (functions under the Competition Act 1998), in subsections (2) and (3), after “38(1) to (6)” (in each place where it occurs) insert “ , 40B(1) to (4) ”.

49

In Schedule 8 (constitution etc. of Monitor), in paragraph 11, after sub-paragraph (2) insert—

(2A) Sub-paragraph (2) is subject to provision in rules made under section 51 of the Competition Act 1998 by virtue of paragraph 1A of Schedule 9 to that Act in respect of the exercise of a function under Part 1 of that Act.

Civil Aviation Act 2012 (c. 19)

50

The Civil Aviation Act 2012 is amended as follows.

51

In section 62 (functions under Competition Act 1998), in subsections (2) and (4), after “38(1) to (6)” (in each place where it occurs) insert “ , 40B(1) to (4) ”.

52

In section 63 (Competition Act 1998: supplementary), in subsection (1), after “38(1) to (6)” insert “ , 40B(1) to (4) ”.

Electricity (Northern Ireland) Order 1992 (SI 1992/231 (N.I. 1))

53

In article 46 of the Electricity (Northern Ireland) Order 1992 (functions with respect to competition), in paragraphs (3), (3A) and (6)(b), after “38(1) to (6)” (in each place where it occurs) insert “ , 40B(1) to (4) ”.

Gas (Northern Ireland) Order 1996 (SI 1996/275 (N.I. 2))

54

In article 23 of the Gas (Northern Ireland) Order 1996 (functions with respect to competition), in paragraphs (3), (3A) and (6)(b), after “38(1) to (6)” (in each place where it occurs) insert “ , 40B(1) to (4) ”.

Energy (Northern Ireland) Order 2003 (SI 2003/419 (N.I. 6))

55

In Schedule 1 to the Energy (Northern Ireland) Order 2003 (constitution etc. of the Authority), in paragraph 9, after sub-paragraph (2) insert—

(2A) Sub-paragraph (1) is subject to provision in rules made under section 51 of the Competition Act 1998 by virtue of paragraph 1A of Schedule 9 to that Act in respect of the exercise of a function under Part 1 of that Act.

SCHEDULE 16

In the Planning (Listed Buildings and Conservation Areas) Act 1990, after Schedule 2 insert—

SCHEDULE 17

National Heritage Act 1983 (c. 47)

1

• (1) Section 33 of the National Heritage Act 1983 (the Commission's general function) is amended as follows.

• (2) In subsection (2A)—

• (a) in paragraph (a) after “1979” insert “ , under section 196D of the Town and Country Planning Act 1990 ”, and

• (b) in paragraph (b) for “that Part or of that Act of 1990” substitute “ Part 1 of the Ancient Monuments and Archaeological Areas Act 1979 or the Planning (Listed Buildings and Conservation Areas) Act 1990 ”.

• (3) After subsection (2A) insert—

(2AA) In relation to an actual or apprehended breach of planning control in respect of relevant demolition, in section 187B of the Town and Country Planning Act 1990 (injunctions restraining breaches of planning control) reference to a local planning authority includes reference to the Commission. (2AB) In subsection (2AA)— - “breach of planning control” has the same meaning as in the Town and Country Planning Act 1990 (see section 171A of that Act); - “relevant demolition” has the same meaning as in section 196D of that Act.

Town and Country Planning Act 1990 (c. 8)

2

The Town and Country Planning Act 1990 is amended as follows.

3

In section 108 (compensation for refusal or conditional grant of planning permission formerly granted by order) after subsection (3E) insert—

(3F) This section does not apply to the extent that the development referred to in subsection (1)(b) would, while permitted by a development order, have required conservation area consent under the Planning (Listed Buildings and Conservation Areas) Act 1990.

4

In section 171B (time limits for enforcement of breaches of planning control) after subsection (2) insert—

(2A) There is no restriction on when enforcement action may be taken in relation to a breach of planning control in respect of relevant demolition (within the meaning of section 196D).

5

In section 174 (appeal against enforcement notice) before subsection (3) insert—

(2C) Where any breach of planning control constituted by the matters stated in the notice relates to relevant demolition (within the meaning of section 196D), an appeal may also be brought on the grounds that— (a) the relevant demolition was urgently necessary in the interests of safety or health; (b) it was not practicable to secure safety or health by works of repair or works for affording temporary support or shelter; and (c) the relevant demolition was the minimum measure necessary.

6

After section 196C insert—

(196D) (1) It is an offence for a person to carry out or cause or permit to be carried out relevant demolition without the required planning permission. (2) It is also an offence for a person to fail to comply with any condition or limitation subject to which planning permission for relevant demolition is granted. (3) In this section “relevant demolition” means the demolition of a building that— (a) is situated in a conservation area in England; and (b) is not a building to which section 74 of the Planning (Listed Buildings and Conservation Areas) Act 1990 does not apply by virtue of section 75 of that Act (listed buildings, certain ecclesiastical buildings, scheduled monuments and buildings described in a direction of the Secretary of State under that section). (4) It is a defence for a person accused of an offence under this section to prove the following matters— (a) that the relevant demolition was urgently necessary in the interests of safety or health; (b) that it was not practicable to secure safety or health by works of repair or works for affording temporary support or shelter; (c) that the relevant demolition was the minimum measure necessary; and (d) that notice in writing of the relevant demolition was given to the local planning authority as soon as reasonably practicable. (5) A person guilty of an offence under this section is liable— (a) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine or both; (b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine or both. (6) In relation to an offence committed before the coming into force of section 154(1) of the Criminal Justice Act 2003, subsection (5)(a) has effect as if the reference to 12 months were to 6 months. (7) In relation to an offence committed before the coming into force of section 85(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, subsection (5)(a) has effect as if the reference to a fine were a reference to a fine not exceeding £20,000. (8) In determining the amount of any fine to be imposed on a person convicted of an offence under this section, the court must in particular have regard to any financial benefit which has accrued or appears likely to accrue to that person in consequence of the offence. (9) Where, after a person commits an offence under this section, planning permission is granted for any development carried out before the grant of the permission, that grant does not affect the person's liability for the offence.

Planning (Listed Buildings and Conservation Areas) Act 1990 (c. 9)

7

The Planning (Listed Buildings and Conservation Areas) Act 1990 is amended as follows.

8

• (1) Section 1 (listing of buildings of special architectural or historic interest) is amended as follows.

• (2) In subsection (5) after “shall” insert “ , subject to subsection (5A)(a), ”.

• (3) After subsection (5) insert—

(5A) In a list compiled or approved under this section, an entry for a building situated in England may provide— (a) that an object or structure mentioned in subsection (5)(a) or (b) is not to be treated as part of the building for the purposes of this Act; (b) that any part or feature of the building is not of special architectural or historic interest.

9

• (1) Section 6 (issue of certificate that building not intended to be listed) is amended as follows.

• (2) Before subsection (1) insert—

(A1) The Secretary of State may, on the application of any person, issue a certificate stating that the Secretary of State does not intend to list a building situated in England.

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) In subsection (2) for “such a certificate” substitute “ a certificate under subsection (A1) or (1) ”.