Deregulation and Contracting Out Act 1994

12 Anti-competitive practices: competition references.

(1) In section 5 of the [1980 c. 21.] Competition Act 1980 (grounds for competition reference) for subsection (1)(a) there shall be substituted—

“(a) there are reasonable grounds for believing that any person is pursuing, or has pursued, a course of conduct which constitutes an anti-competitive practice,”.

(2) In consequence of subsection (1) above, that Act shall be amended as mentioned in subsections (3) to (6) below.

(3) In section 3 of that Act (preliminary investigation by Director General of Fair Trading of possible anti-competitive practice) subsections (2) to (6), (9) and (10) (which provide for the formal constitution, carrying out and discontinuation of an investigation and the publication by the Director of a report following completion of an investigation) shall cease to have effect.

(4) In section 4 of that Act (undertakings) for subsections (1) to (3) there shall be substituted—

“(1) Where it appears to the Director—

(a) that there are reasonable grounds for believing that any person is pursuing, or has pursued, a course of conduct which constitutes an anti-competitive practice,

(b) that the practice may operate, now or in future, or have operated, against the public interest, and

(c) that an undertaking offered to be given to the Director by that person, or by a person associated with that person, would remedy or prevent effects adverse to the public interest which the practice may now or in future have,

he may, at any time before making a reference under section 5(1)(a) below in relation to the course of conduct in question, accept the undertaking by giving notice to the person by whom it is offered.

(2) The Director may not accept an undertaking under subsection (1) above unless he has—

(a) arranged for the publication of an appropriate notice, and

(b) considered any representations made to him in accordance with the notice.

(3) Publication under subsection (2)(a) above shall be in such manner as the Director considers most suitable for bringing the notice to the attention of persons who, in his opinion, would, if the course of conduct in question were the subject of a reference under section 5(1)(a) below, be affected by the reference or be likely to have an interest in it.

(3A) In subsection (2)(a) above, the reference to an appropriate notice is to a notice which—

(a) states that the Director is proposing to exercise his power under subsection (1) above,

(b) identifies the course of conduct whose pursuit prompts the exercise of that power,

(c) identifies the person who the Director believes is pursuing, or has pursued, that course of conduct,

(d) identifies the goods or services in relation to which the Director believes that person is pursuing, or has pursued, that course of conduct,

(e) specifies the effects which the Director has identified as effects adverse to the public interest which that course of conduct may now or in future have,

(f) sets out the terms of the undertaking which the Director is proposing to accept,

(g) identifies the person by whom the undertaking is to be given, and

(h) specifies a deadline for the making to the Director of representations about what he proposes to do.

(3B) Once the Director has considered any representations made to him in accordance with a notice under paragraph (a) of subsection (2) above, that subsection shall not apply to the acceptance of a modified version of the undertaking set out in the notice.”

(5) In that section, at the end there shall be inserted—

“(10) Subsection (6) of section 2 above shall apply for the purposes of this section as it applies for the purposes of that.”

(6) In section 6 of that Act (scope of competition references) for subsections (3) and (4) there shall be substituted—

“(3) Where the Director has accepted an undertaking under section 4 above with respect to the pursuit by any person of a course of conduct in relation to any goods or services, the Director may not, while the undertaking is in force, make a competition reference by virtue of section 5(1)(a) above with respect to the pursuit by that person of that course of conduct in relation to those goods or services.”

(7) Schedule 4 to this Act (which makes provision about sectoral regulators and with respect to transition) shall have effect.