The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014

Made: 31st March 2014

Coming into force: 1st April 2014

In accordance with section 99(5) of that Act, a draft of this instrument was laid before Parliament and approved by a resolution of each House of Parliament:

Citation, commencement, interpretation and extent

1

• (1) This Order may be cited as the Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 and comes into force on 1st April 2014.

• (2) In this Order—

• “the Act” means the Enterprise and Regulatory Reform Act 2013;

• “CMA” means the Competition and Markets Authority;

• “Commission” means the Competition Commission;

• “enactment” includes— an enactment comprised in subordinate legislation (within the meaning of the Interpretation Act 1978[^f00002]), and an enactment comprised in (or in an instrument made under) an Act of the Scottish Parliament, a Measure or Act of the National Assembly for Wales or Northern Ireland legislation;

• “OFT” means the Office of Fair Trading.

• (3) An amendment or repeal made by this Order has the same extent as the enactment to which it relates.

Consequential amendments to other legislation etc.

2

Schedule 1 (which amends various enactments to make provision for the transfer of certain functions from the OFT and the Commission to the CMA and contains amendments consequential on Parts 3 and 4 of the Act) has effect.

Continuity of functions

3

• (1) Anything which, immediately before the commencement date, is in the process of being done by or in relation to the transferor may, so far as it relates to a relevant function, be continued by or in relation to the transferee.

• (2) Anything done (or having effect as if done) by or in relation to the transferor for the purposes of or in connection with a relevant function is, if in force or effective immediately before the commencement date, to have effect as if done by or in relation to the transferee so far as that is required for continuing its effect on or after the commencement date.

• (3) In the application of paragraph (1) or (2)—

• (a) any reference made before the commencement date under section 32 of the Water Industry Act 1991[^f00003] to the Commission is to be treated, so far as provided by those paragraphs, as a reference under that section to the chair of the CMA for the constitution of a CMA group,

• (b) where any functions exercisable immediately before the commencement date by a Commission group are to be exercisable on or after that date by a CMA group—

• (i) any person who, immediately before the commencement date, is a member of the Commission group is to be treated, on or after that date, as a member of the CMA group concerned if the person is a member of the CMA panel,

• (ii) any person who, immediately before the commencement date, is the chairman of the Commission group is to be treated, on or after that date, as the chair of the CMA group if the person is a member of the CMA panel, and

• (iii) the persons treated as mentioned in paragraph (i) or (ii) are to be treated, on or after the commencement date, as if they have been constituted in accordance with Part 3 of Schedule 4 to the Act as the chair and other members of the CMA group (and that Part applies accordingly in relation to the operation of the group), and

• (c) an authorisation given (whether by warrant or otherwise) before the commencement date, so far as it authorises a named member, or member of staff, of the OFT or the Commission, continues to authorise that individual (but no other) on or after the commencement date if, and only if, the individual is a member, or (as the case may be, a member of staff, of the CMA.

• (4) Paragraphs (1) to (3)—

• (a) do not apply in relation to any matter dealt with by a transfer scheme under section 27 of the Act or by any other transitional provision made by virtue of the Act; and

• (b) do not apply so as to convert an appointment as a member of the OFT or the Commission into an appointment as a member of the CMA.

• (5) Any enactment, instrument or other document passed or made before the commencement date is to have effect, so far as necessary for the purposes of or in consequence of its continued effect by virtue of Schedule 2, as if any references (however expressed) to the transferor were references to the transferee.

• (6) Any enactment, instrument or other document passed or made before the commencement date is to have effect, so far as necessary for the purposes of or in consequence of—

• (a) anything transferred from the transferor to the transferee by virtue of this Order or Part 3 or 4 of the Act, or

• (b) the abolition of the OFT or the Commission,

as if any references (however expressed) to the transferor were references to the transferee

• (7) The repeals of section 45(4) of the Competition Act 1998 and section 2(3) of the Enterprise Act 2002 by Parts 3 and 4 of Schedule 5 to the Act do not apply so far as those sections create references to the transferor to which paragraph (5) or (6) above are capable of applying.

• (8) The abolition of the OFT or the Commission does not affect the validity of anything done (or having effect as if done) by or in relation to the transferor before the commencement date.

• (9) In this article—

• “CMA Board” has the same meaning as in Schedule 4 to the Act (see Part 2 of that Schedule);

• “CMA group” means a group constituted in accordance with Part 3 of Schedule 4 to the Act;

• “CMA panel” has the same meaning as in Schedule 4 to the Act (see Part 3 of that Schedule);

• “commencement date” means 1st April 2014;

• “Commission group” means a group constituted under any enactment to perform functions of the Commission;

• “relevant function” means any function of the transferor which is transferred to the transferee by this Order;

• “transferee” means the CMA, the CMA Board, a CMA group, the chair of the CMA or another member of the CMA or (as the case may be) a member of staff of the CMA;

• “transferor” means the OFT, the Commission, a Commission group, the chairman of the OFT or Commission, another member of the OFT or Commission, or a member of staff of the OFT or the Commission;

and references in this article to things done include references to things omitted to be done.

• (10) Schedule 2 (which makes further transitional provision in relation to amendments in Schedule 1 to the investigation powers of the CMA) has effect.

SCHEDULE 1 — TRANSFER OF FUNCTIONS OF OFT AND COMPETITION COMMISSION TO CMA AND AMENDMENTS CONSEQUENTIAL ON PARTS 3 AND 4 OF THE ACT

PART 1 — Amendments to the Enterprise Act 2002

1

The Enterprise Act 2002[^f00004] is amended as follows.

2

In section 8A (exclusion of public consumer advice scheme)[^f00005], for “OFT” substitute “CMA”.

3

In section 109 (attendance of witnesses and production of documents etc), in subsection (1)(b), for “Commission” (in both places where it occurs) substitute “CMA”.

4

In section 205 (super-complaints to regulators other than OFT), in subsection (1) and in the heading, for “OFT” substitute “CMA”.

5

In section 206 (power to modify Schedule 8), in subsection (9) for “OFT and the Commission” substitute “CMA”.

6

In section 213 (enforcers)[^f00006], in subsections (1)(a) and (5A)(a), for “OFT” substitute “CMA”.

7

In section 214 (consultation)[^f00007], in subsections (1)(b) and (3), for “OFT” (in each place where it occurs) substitute “CMA”.

8

In section 215 (applications)[^f00008], in subsection (9), for “OFT” (in both places where it occurs) substitute “CMA”.

9

In section 216 (applications: directions by OFT), in subsections (1) to (5) and in the heading, for “OFT” (in each place where it occurs) substitute “CMA”.

10

In section 219 (undertakings)[^f00009], in subsection (6), for “OFT” substitute “CMA”.

11

In section 220 (further proceedings), in subsections (2) and (6), for “OFT” (in each place where it occurs) substitute “CMA”.

12

In section 224 (OFT), in subsections (1) and (2) and in the heading, for “OFT” substitute “CMA”.

13

In section 225 (other enforcers)[^f00010], in subsections (1)(a) and (c), for “OFT” substitute “CMA”.

14

• (1) Section 229 (advice and information)[^f00011] is amended as follows.

• (2) In subsection (1)—

• (a) for the words from the beginning to “the OFT” substitute “The CMA”, and

• (b) in paragraph (b), for “OFT” substitute “CMA”.

• (3) In subsections (2) to (5), for “OFT” substitute “CMA”.

15

• (1) Section 230 (notice to OFT of intended prosecution) is amended as follows.

• (2) In subsection (2)—

• (a) in the wording before paragraph (a), for “OFT” substitute “CMA”, and

• (b) omit paragraph (b).

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

• (a) for “OFT” (in both places where it occurs) substitute “CMA”, and

• (b) omit “and summary”.

• (4) In subsection (4), for “OFT” substitute “CMA”.

16

In section 231 (notice of convictions and judgments to OFT), in subsection (2) and in the heading, for “OFT” (in each place where it occurs) substitute “CMA”.

17

In Schedules 14 and 15 (provisions concerning disclosure of information)[^f00012], at the appropriate place, insert—

Parts 3 and 4 of the Enterprise and Regulatory Reform Act 2013.

18

• (1) Schedule 24 (transitional and transitory provisions and savings)[^f00013] is amended as follows.

• (2) Omit paragraphs 1 and 3 to 5.

• (3) In paragraph 15 (transitional provisions regarding enforcement undertakings and orders)—

• (a) after sub-paragraph (2), insert—

(2A) Subject to sub-paragraph (3), the functions of the CMA under section 94(6) as applied by virtue of sub-paragraph (1) or (2) are to be carried out on its behalf by the CMA Board (within the meaning of Schedule 4 to the Enterprise and Regulatory Reform Act 2013).

, and

• (b) in sub-paragraph (3), in the wording after paragraph (b), for “the Commission” substitute “a group constituted for the purpose by the chair of the CMA under Schedule 4 to the Enterprise and Regulatory Reform Act 2013”.

• (4) In paragraph 16 (powers to supersede, vary or release undertakings)—

• (a) in sub-paragraphs (2) and (3), for “relevant authority” (in each place where it occurs) substitute “CMA”,

• (b) in sub-paragraph (4), for “OFT” substitute “CMA”,

• (c) in sub-paragraph (5), for “relevant authority” substitute “CMA”, and

• (d) for sub-paragraph (6) substitute—

(6) The functions of the CMA under this paragraph are to be carried out on its behalf— (a) in the case of an undertaking accepted in pursuance of a proposal under section 56A of the 1973 Act or an undertaking under section 56F or 75G of that Act, by the CMA Board (within the meaning of Schedule 4 to the Enterprise and Regulatory Reform Act 2013), and (b) in the case of an undertaking accepted under section 88 of that Act, by a group constituted for the purpose by the chair of the CMA under Schedule 4 to the Enterprise and Regulatory Reform Act 2013.

• (5) In paragraph 17—

• (a) in sub-paragraph (1), for “Commission” substitute “CMA”,

• (b) in sub-paragraph (2), for “OFT” substitute “CMA”,

• (c) in sub-paragraph (3)—

• (i) for “Commission” substitute “CMA”, and

• (ii) for the words from “sub-paragraph (1)” to “sub-paragraph (2),” substitute “sub-paragraphs (1) and (2)”,

• (d) in sub-paragraph (4)—

• (i) for “Commission” substitute “CMA”, and

• (ii) for the words from “sub-paragraph (1)” to “sub-paragraph (2),” substitute “sub-paragraphs (1) and (2)”,

• (e) in sub-paragraph (5), for “Commission or the OFT” substitute “CMA”, and

• (f) after sub-paragraph (5) insert—

(6) The functions of the CMA under this paragraph are to be carried out on its behalf— (a) in the case of an order under sub-paragraph (1), by a group constituted for the purpose by the chair of the CMA under Schedule 4 to the Enterprise and Regulatory Reform Act 2013, and (b) in the case of an order under sub-paragraph (2), by the CMA Board (within the meaning of Schedule 4 to the Enterprise and Regulatory Reform Act 2013).

• (6) In paragraph 18—

• (a) after sub-paragraph (1), insert—

(1A) Subject to sub-paragraph (2), the functions of the CMA under section 94(6) as applied by virtue of sub-paragraph (1) are to be carried out on its behalf by the CMA Board (within the meaning of Schedule 4 to the Enterprise and Regulatory Reform Act 2013).

• (b) in sub-paragraph (2)—

• (i) for “the Commission” (where it first appears) substitute “a group constituted by the chair of the CMA under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 (“CMA group”)”,

• (ii) for “it” substitute “a CMA group”,

• (iii) for “the Commission” (where it next appears) substitute “a CMA group”.

PART 2 — Amendments to other Acts of Parliament

Registered Designs Act 1949

19

The Registered Designs Act 1949[^f00014] is amended as follows.

20

• (1) Section 11A (powers exercisable for protection of the public interest)[^f00015] is amended as follows.

• (2) In subsections (1) and (7), for “Competition Commission” (in each place where it occurs) substitute “Competition and Markets Authority”.

• (3) In subsection (3), for “Commission’s report as being those which in the Commission’s opinion”, substitute “Competition and Markets Authority’s report as being those which in the opinion of the Competition and Markets Authority”.

21

• (1) Section 11AB (powers exercisable following merger and market investigations)[^f00016] is amended as follows.

• (2) In subsection (1)—

• (a) in paragraph (a), after “147(2)” insert “, 147A(2)”, and

• (b) in paragraph (b), for “Competition Commission” substitute “Competition and Markets Authority”.

• (3) In subsections (2) and (3), for “Competition Commission” substitute “Competition and Markets Authority”.

• (4) For subsection (6) substitute—

(6) References in this section to the Competition and Markets Authority are references to a CMA group except where— (a) section 75(2) of the Enterprise Act 2002 applies; or (b) any other enactment mentioned in subsection (1)(a) above applies and the functions of the Competition and Markets Authority under that enactment are being performed by the CMA Board by virtue of section 34C(3) or 133A(2) of the Enterprise Act 2002.

• (5) In subsection (7)—

• (i) for “or 141” substitute “, 141 or 141A”,

• (ii) for “Competition Commission” substitute “Competition and Markets Authority”, and

• (iii) for “or 147” substitute “, 147 or 147A”.

• (6) After subsection (8), insert—

(9) In subsection (6) “CMA Board” and “CMA group” have the same meaning as in Schedule 4 to the Enterprise and Regulatory Reform Act 2013.

Agricultural Marketing Act 1958

22

The Agricultural Marketing Act 1958[^f00017] is amended as follows.

23

In section 19A (agricultural marketing schemes – intervention on competition grounds)[^f00018]—

• (a) in subsection (1B), after “147(2)”, insert “or 147A(2)”, and

• (b) in subsection (1C)(a), for “Competition Commission” substitute “Competition and Markets Authority”.

24

In section 47(2) (restrictions on disclosing certain information obtained under Act)[^f00019], for paragraph (aa) substitute—

(aa) made to the Competition and Markets Authority, if it is made for the purpose of enabling the Authority to perform any of its functions under— (i) the Fair Trading Act 1973; (ii) the Competition Act 1980; (iii) the Enterprise Act 2002; or (iv) Part 3 of the Enterprise and Regulatory Reform Act 2013.

Public Records Act 1958

25

In Schedule 1 to the Public Records Act 1958 (definition of public records)[^f00020], in Part 2 of the Table at the end of paragraph 3, omit “Competition Commission” and “Office of Fair Trading”.

Parliamentary Commissioner Act 1967

26

In Schedule 2 to the Parliamentary Commissioner Act 1967 (departments etc subject to investigation)[^f00021], omit the entries for “Competition Commission” and “Office of Fair Trading”.

Superannuation Act 1972

27

In Schedule 1 to the Superannuation Act 1972 (kinds of employment to which section 1 of that Act applies)[^f00022], in the list of Royal Commissions and other Commissions, omit the entry for the “Competition Commission”.

Fair Trading Act 1973

28

In section 137 of the Fair Trading Act 1973 (general interpretation)[^f00023], in subsection (2)—

• (a) omit the definition of “the Commission”,

• (b) in the definition of “Minister” for “establishment consisting of the Director and his staff” substitute “Competition and Markets Authority”.

House of Commons Disqualification Act 1975

29

In Part 2 of Schedule 1 to the House of Commons Disqualification Act 1975 (bodies of which all members are disqualified)[^f00024], omit “The Competition Commission” and “The Office of Fair Trading”.

Northern Ireland Assembly Disqualification Act 1975

30

In Part 2 of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975 (bodies of which all members are disqualified)[^f00025] omit “The Competition Commission” and “The Office of Fair Trading”.

Patents Act 1977

31

The Patents Act 1977[^f00026] is amended as follows.

32

• (1) Section 50A (powers exercisable following merger and market investigations)[^f00027] is amended as follows.

• (2) In subsection (1)(a), after “147(2)” insert “, 147A(2)”.