The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004

(1) The OFT may make such rules about procedural and other matters in connection with the carrying into effect of the provisions of Parts 2 and 2A as it considers appropriate. (2) If the OFT is preparing rules under this section it must consult such persons as it considers appropriate. (3) No rule made by the OFT is to come into operation until it has been approved by an order made by the Secretary of State. (4) The Secretary of State may approve any rule made by the OFT— (a) in the form in which it is submitted; or (b) subject to such modifications as he considers appropriate. (5) If the Secretary of State proposes to approve a rule subject to modifications he must inform the OFT of the proposed modifications and take into account any comments made by the OFT. (6) Subsections (3) to (5) apply also to any alteration of the rules made by the OFT. (7) The Secretary of State may, after consulting the OFT, by order vary or revoke any rules made under this section. (8) If the Secretary of State considers that rules should be made under this section with respect to a particular matter he may direct the OFT to exercise its powers under this section and make rules about that matter.

48

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

• (2) In paragraph 4—

• (a) for sub-paragraph 5(a), there is substituted—

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

; and

• (b) sub-paragraph (6) shall cease to have effect.

49

• (1) Schedule 2 (exclusions: other competition scrutiny) is amended as follows.

• (2) Part 2 (companies) shall cease to have effect.

• (3) Part 4 (environmental protection) shall cease to have effect.

50

In Schedule 3 (general exclusions)—

• (a) paragraph 2 shall cease to have effect; and

• (b) in paragraph 9—

• (i) in sub-paragraph (1)(b), for the words “Article 39” there is substituted “ Article 33 ”;

• (ii) in sub-paragraph (2), for the words “Article 85(1)” there is substituted “ Article 81(1) ”;

• (iii) in sub-paragraph (9), in the definition of “agricultural product” for “Annex II” there is substituted “ Annex I ”.

51

Schedule 5 (notification under Chapter I: procedure) and Schedule 6 (notification under Chapter II: procedure) shall cease to have effect.

52

Before Schedule 7 there is inserted—

SCHEDULE 6A (1) Paragraph 2 applies where the OFT proposes to— (a) accept any commitments under section 31A; or (b) accept any variation of such commitments other than a variation which is not material in any respect. (2) (1) Before accepting the commitments or variation, the OFT must— (a) give notice under this paragraph; and (b) consider any representations made in accordance with the notice and not withdrawn. (2) A notice under this paragraph must state— (a) that the OFT proposes to accept the commitments or variation; (b) the purpose of the commitments or variation and the way in which the commitments or variation would meet the OFT’s competition concerns; (c) any other facts which the OFT considers are relevant to the acceptance or variation of the commitments; and (d) the period within which representations may be made in relation to the proposed commitments or variation. (3) The period stated for the purposes of sub-paragraph (2)(d) must be at least 11 working days starting with the date the notice is given or, if that date is not a working day, with the date of the first working day after that date. (3) (1) The OFT must not accept the commitments or variation of which notice has been given under paragraph 2(1) with modifications unless it— (a) gives notice under this paragraph of the proposed modifications; and (b) considers any representations made in accordance with the notice and not withdrawn. (2) A notice under this paragraph must state— (a) the proposed modifications; (b) the reasons for them; and (c) the period within which representations may be made in relation to the proposed modifications. (3) The period stated for the purposes of sub-paragraph (2)(c) must be at least 6 working days starting with the date the notice is given or, if that date is not a working day, with the date of the first working day after that date. (4) If, after giving notice under paragraph 2 or 3 the OFT decides— (a) not to accept the commitments or variation concerned, and (b) not to proceed by virtue of paragraph 5 or 6, the OFT must give notice that it has so decided. (5) The requirements of paragraph 3 shall not apply if the OFT— (a) has already given notice under paragraph 2 but not under paragraph 3; and (b) considers that the modifications which are now being proposed are not material in any respect. (6) The requirements of paragraph 3 shall not apply if the OFT— (a) has already given notices under paragraphs 2 and 3; and (b) considers that the further modifications which are now being proposed are not material in any respect or do not differ in any material respect from the modifications in relation to which notice was last given under paragraph 3. (7) As soon as practicable after accepting commitments or a variation under section 31A the OFT must publish the commitments or the variation in such manner as the OFT considers appropriate. (8) A notice under paragraph 2 or 3 shall be given by— (a) sending a copy of the notice to such person or persons as the OFT considers appropriate for the purpose of bringing the matter to which it relates to the attention of those likely to be affected by it; or (b) publishing the notice in such manner as the OFT considers appropriate for the purpose of bringing the matter to which it relates to the attention of those likely to be affected by it. (10) Paragraph 11 applies where the OFT proposes to release any commitments under section 31A. (11) (1) Before releasing the commitments, the OFT must— (a) give notice under this paragraph; (b) send a copy of the notice to the person (or persons) who gave the commitments; and (c) consider any representations made in accordance with the notice and not withdrawn. (2) A notice under this paragraph must state— (a) the fact that a release is proposed; (b) the reasons for it; and (c) the period within which representations may be made in relation to the proposed release. (3) The period stated for the purposes of sub-paragraph (2)(c) must be at least 11 working days starting with the date the notice is given or, if that date is not a working day, with the date of the first working day after that date. (12) If after giving notice under paragraph 11 the OFT decides not to proceed with the release, it must— (a) give notice that it has so decided; and (b) send a copy of the notice to the person (or persons) who gave the commitments. (13) As soon as practicable after releasing the commitments, the OFT must— (a) publish the release in such manner as it considers appropriate; and (b) send a copy of the release to the person (or persons) who gave the commitments. (14) A notice under paragraph 11 or 12 shall be given by— (a) sending a copy of the notice to such other person or persons as the OFT considers appropriate for the purpose of bringing the matter to which it relates to the attention of those likely to be affected by it; or (b) publishing the notice in such manner as the OFT considers appropriate for the purpose of bringing the matter to which it relates to the attention of those likely to be affected by it.

53

• (1) Schedule 8 (appeals) is amended as follows.

• (2) Before sub-paragraph (1) of paragraph 3 there is inserted—

(A1) This paragraph applies to any appeal under section 46 or 47 other than— (a) an appeal under section 46 against, or with respect to, a decision of the kind specified in subsection (3)(g) or (h) of that section, and (b) an appeal under section 47(1)(b) or (c).

• (3) Paragraph (2)(c) of paragraph 3 shall cease to have effect.

• (4) After paragraph 3 there is inserted—

(3A) (1) This paragraph applies to— (a) any appeal under section 46 against, or with respect to, a decision of the kind specified in subsection (3)(g) or (h) of that section, and (b) any appeal under section 47(1)(b) or (c). (2) The Tribunal must, by reference to the grounds of appeal set out in the notice of appeal, determine the appeal by applying the same principles as would be applied by a court on an application for judicial review. (3) The Tribunal may— (a) dismiss the appeal or quash the whole or part of the decision to which it relates; and (b) where it quashes the whole or part of that decision, remit the matter back to the OFT with a direction to reconsider and make a new decision in accordance with the ruling of the Tribunal.

54

• (1) Schedule 9 (OFT’s rules) is amended as follows.

• (2) For paragraph 1, there is substituted—

(1) In this Schedule “rules” means rules made by the OFT under section 51.

• (3) Paragraphs 2, 3 and 4 shall cease to have effect.

• (4) For sub-paragraph (1)(d) of paragraph 5 there is substituted—

(d) the procedure to be followed if— (i) the OFT takes further action with respect to an agreement after having decided that it does not infringe the Chapter I prohibition; (ii) the OFT takes further action with respect to an agreement after having decided that it does not infringe the prohibition in Article 81(1); (iii) the OFT takes further action with respect to conduct after having decided that it does not infringe the Chapter II prohibition; or (iv) the OFT takes further action with respect to conduct after having decided that it does not infringe the prohibition in Article 82.

• (5) For sub-paragraph (2) of paragraph 5 there is substituted—

(2) In this paragraph “decision” means a decision of the OFT— (a) as to whether or not an agreement has infringed the Chapter I prohibition; (b) as to whether or not an agreement has infringed the prohibition in Article 81(1); (c) as to whether or not conduct has infringed the Chapter II prohibition; or (d) as to whether or not conduct has infringed the prohibition in Article 82.

• (6) Paragraphs 6 and 7 shall cease to have effect.

• (7) For paragraph 8 there is substituted—

(8) Rules may make provision as to— (a) the procedure to be followed by the OFT if it cancels a block exemption; (b) the procedure to be followed by the OFT if it withdraws the benefit of a regulation of the Commission pursuant to Article 29(2) of the EC Competition Regulation.

• (8) In paragraph 11, the words “2(3) or” shall cease to have effect.

• (9) In paragraph 14, for the words “32 to 41” there is substituted “ 32 to 40 ”.

SCHEDULE 2 — Amendments to other enactments

1

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

• (2) In section 36A (functions with respect to competition)—

• (a) for subsection (3) there is substituted—

(3) The Authority shall be entitled to exercise, concurrently with the Office of Fair Trading, the functions of the Office of Fair Trading under the provisions of Part 1 of the Competition Act 1998 (other than sections 31D(1) to (6), 38(1) to (6) and 51), so far as relating to— (a) agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act, (b) conduct of the kind mentioned in section 18(1) of that Act, (c) agreements, decisions or concerted practices of the kind mentioned in Article 81(1) of the treaty establishing the European Community, or (d) conduct which amounts to abuse of the kind mentioned in Article 82 of the treaty establishing the European Community, which relate to the carrying on of activities to which this subsection applies.

• (b) in subsection (3A), for the words “except in sections 38(1) to (6)” there is substituted “ except in sections 31D(1) to (6), 38(1) to (6) ”;

• (c) in subsection (7)(b), for the words “other than sections 38(1) to (6)” there is substituted “ other than sections 31D(1) to (6), 38(1) to (6) ”.

2

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

• (2) Subsection (2)(a) of section 46 (delegation of functions of Secretary of State), section 47 (restrictive practices) and Schedule 14 (supervisory and qualifying bodies: restrictive practices) shall cease to have effect.

• (3) In section 54 (index of defined expressions) the entry in the Table relating to “Director (in Schedule 14)” shall cease to have effect.

3

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

• (2) In section 43 (functions with respect to competition)—

• (a) for subsection (3) there is substituted—

(3) The Authority shall be entitled to exercise, concurrently with the Office of Fair Trading, the functions of the Office of Fair Trading under the provisions of Part 1 of the Competition Act 1998 (other than sections 31D(1) to (6), 38(1) to (6) and 51), so far as relating to— (a) agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act, (b) conduct of the kind mentioned in section 18(1) of that Act, (c) agreements, decisions or concerted practices of the kind mentioned in Article 81(1) of the treaty establishing the European Community, or (d) conduct which amounts to abuse of the kind mentioned in Article 82 of the treaty establishing the European Community, which relate to commercial activities connected with the generation, transmission or supply of electricity.

• (b) in subsection (3A), for the words “except in sections 38(1) to (6)” there is substituted “ except in sections 31D(1) to (6), 38(1) to (6) ”;

• (c) in subsection (6)(b), for the words “other than sections 38(1) to (6)” there is substituted “ other than sections 31D(1) to (6), 38(1) to (6) ”.

4

• (1) The Water Industry Act 1991 is amended as follows.

• (2) In section 31 (functions of the Director with respect to competition)—

• (a) for subsection (3) there is substituted—

(3) The Director shall be entitled to exercise, concurrently with the OFT, the functions of the OFT under the provisions of Part 1 of the Competition Act 1998 (other than sections 31D(1) to (6), 38(1) to (6) and 51), so far as relating to — (a) agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act, (b) conduct of the kind mentioned in section 18(1) of that Act, (c) agreements, decisions or concerted practices of the kind mentioned in Article 81(1) of the treaty establishing the European Community, or (d) conduct which amounts to abuse of the kind mentioned in Article 82 of the treaty establishing the European Community, which relate to commercial activities connected with the supply of water or securing a supply of water or with the provision or securing of sewerage services.

• (b) in subsection (4A), for the words “except in sections 38(1) to (6)” there is substituted “ except in sections 31D(1) to (6), 38(1) to (6) ”;

• (c) in subsection (8)(b), for the words “other than sections 38(1) to (6)” there is substituted “ other than sections 31D(1) to (6), 38(1) to (6). ”.

5

• (1) The Electricity (Northern Ireland) Order 1992 is amended as follows.

• (2) In Article 46 (functions with respect to competition)—

• (a) for paragraph (3) there is substituted—

(3) The Director shall be entitled to exercise, concurrently with the Office of Fair Trading, the functions of the Office of Fair Trading under the provisions of Part 1 of the Competition Act 1998 (other than sections 31D(1) to (6), 38(1) to (6) and 51), so far as relating to— (a) agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act, (b) conduct of the kind mentioned in section 18(1) of that Act, (c) agreements, decisions or concerted practices of the kind mentioned in Article 81(1) of the treaty establishing the European Community, or (d) conduct which amounts to abuse of the kind mentioned in Article 82 of the treaty establishing the European Community, which relate to commercial activities connected with the generation, transmission or supply of electricity.

• (b) in paragraph (3A), for the words “except in sections 38(1) to (6)” there is substituted “ except in sections 31D(1) to (6), 38(1) to (6) ”;

• (c) in paragraph (6)(b), for the words “other than sections 38(1) to (6)” there is substituted “ other than sections 31D(1) to (6), 38(1) to (6) ”.

6

• (1) The Railways Act 1993 is amended as follows.

• (2) In section 67 (respective functions of the Regulator and OFT, and functions of the Monopolies Commission)—

• (a) for subsection (3) there is substituted—

(3) The Regulator shall be entitled to exercise, concurrently with the OFT, the functions of the OFT under the provisions of Part 1 of the Competition Act 1998 (other than sections 31D(1) to (6), 38(1) to (6) and 51), so far as relating to— (a) agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act, (b) conduct of the kind mentioned in section 18(1) of that Act, (c) agreements, decisions or concerted practices of the kind mentioned in Article 81(1) of the treaty establishing the European Community, or (d) conduct which amounts to abuse of the kind mentioned in Article 82 of the treaty establishing the European Community, which relate to the supply of services relating to railways.

• (b) in subsection (3A), for the words “except in sections 38(1) to (6)” there is substituted “ except in sections 31D(1) to (6), 38(1) to (6) ”;

• (c) in subsection (8)(b), for the words “other than sections 38(1) to (6)” there is substituted “ other than sections 31D(1) to (6), 38(1) to (6) ”.

7

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

• (2) In section 94 (producer responsibility: supplementary provisions)—

• (a) paragraphs (n), (oa) and (ya) of subsection (1) shall cease to have effect;

• (b) the definition of “competition scrutiny” in subsection (6) shall cease to have effect;

• (c) subsection (6A) shall cease to have effect.

• (3) Section 94A (producer responsibility: competition matters) shall cease to have effect.

8

• (1) The Channel Tunnel Rail Link Act 1996 is amended as follows.

• (2) In section 22 (restriction of functions in relation to competition etc), for subsection (3) there is substituted—

(3) The Rail Regulator shall not be entitled to exercise any functions assigned to him by section 67(3) of the Railways Act 1993 (by virtue of which he exercises concurrently with the Office of Fair Trading certain functions under Part 1 of the Competition Act 1998 so far as relating to matters connected with the supply of railway services) in relation to— (a) agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act, (b) conduct of the kind mentioned in section 18(1) of that Act, (c) agreements, decisions or concerted practices of the kind mentioned in Article 81(1) of the treaty establishing the European Community, or (d) conduct which amounts to abuse of the kind mentioned in Article 82 of the treaty establishing the European Community, entered into, taken by or engaged in by a rail link undertaker in connection with the supply of railway services, so far as relating to the rail link.

9

• (1) The Gas (Northern Ireland) Order 1996 is amended as follows.

• (2) In Article 23 (functions with respect to competition)—

• (a) for paragraph (3) there is substituted—

(3) The Director shall be entitled to exercise, concurrently with the Office of Fair Trading, the functions of the Office of Fair Trading under the provisions of Part 1 of the Competition Act 1998 (other than sections 31D(1) to (6), 38(1) to (6) and 51), so far as relating to— (a) agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act, (b) conduct of the kind mentioned in section 18(1) of that Act, (c) agreements, decisions or concerted practices of the kind mentioned in Article 81(1) of the treaty establishing the European Community, or (d) conduct which amounts to abuse of the kind mentioned in Article 82 of the treaty establishing the European Community, connected with the conveyance, storage or supply of gas.

• (b) in paragraph (3A), for the words “except in sections 38(1) to (6)” there is substituted “ except in sections 31D(1) to (6), 38(1) to (6) ”;

• (c) in paragraph (6)(b), for the words “other than sections 38(1) to (6)” there is substituted “ other than sections 31D(1) to (6), 38(1) to (6) ”.

10

• (1) The Transport Act 2000 is amended as follows.

• (2) In section 86 (functions exercisable by the CAA and OFT)—

• (a) for subsection (3) there is substituted—

(3) This subsection applies to the OFT’s functions under the provisions of Part 1 of the 1998 Act (other than sections 31D(1) to (6), 38(1) to (6) and 51), so far as relating to— (a) agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act, (b) conduct of the kind mentioned in section 18(1) of that Act, (c) agreements, decisions or concerted practices of the kind mentioned in Article 81(1) of the treaty establishing the European Community, or (d) conduct which amounts to abuse of the kind mentioned in Article 82 of the treaty establishing the European Community, which relate to the supply of air traffic services.

• (b) in subsection (4)(b), for the words “except in sections 38(1) to (6)” there is substituted “ except in sections 31D(1) to (6), 38(1) to (6) ”;

• (c) in subsection (7)(b), for the words “except under section 38(1) to (6)” there is substituted “ except under section 31D(1) to (6), 38(1) to (6) ”.

11

• (1) The Communications Act 2003 is amended as follows.

• (2) In section 371 (OFCOM’s functions under the Competition Act 1998)—

• (a) for subsection (2) there is substituted—

(2) This subsection applies to the functions of the Office of Fair Trading under the provisions of Part 1 of the Competition Act 1998 (other than sections 31D(1) to (6), 38(1) to (6) and 51), so far as relating to— (a) agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act, (b) conduct of the kind mentioned in section 18(1) of that Act, (c) agreements, decisions or concerted practices of the kind mentioned in Article 81(1) of the treaty establishing the European Community, or (d) conduct which amounts to abuse of the kind mentioned in Article 82 of the treaty establishing the European Community, which relate to activities connected with communications matters.

• (b) in subsection (3)(a), for the words “in sections 38(1) to (6)” there is substituted “ in sections 31D(1) to (6), 38(1) to (6) ”.

Signed

Gerry Sutcliffe — Parliamentary Under Secretary of State for Employment Relations, Competition and Consumers, — Department of Trade and Industry — 2004-04-30

Explanatory note

(This note is not part of these Regulations)

Footnotes

Editorial notes