Competition Act 1998

35 Interim measures. U.K.

[F1 (1) Subject to subsections (8) and (9), this section applies if the [F2 CMA] has begun an investigation under section 25 and not completed it (but only applies so long as the [F2 CMA] has power under section 25 to conduct that investigation).]

(2) If the [F2 CMA] considers that it is necessary for [F3 it] to act under this section as a matter of urgency for the purpose—

(a) of preventing [F4 significant damage] to a particular person or category of person, or

(b) of protecting the public interest,

[F3 it] may give such directions as [F3 it] considers appropriate for that purpose.

(3) Before giving a direction under this section, the [F2 CMA] must—

(a) give written notice to the person (or persons) to whom [F3 it] proposes to give the direction; and

(b) give that person (or each of them) an opportunity to make representations.

(4) A notice under subsection (3) must indicate the nature of the direction which the [F2 CMA] is proposing to give and [F3 its] reasons for wishing to give it.

[F5 (5) A direction given under this section may if the circumstances permit be replaced by—

(a) a direction under section 32 or (as appropriate) section 33, or

(b) commitments accepted under section 31A,

but, subject to that, has effect while this section applies.]

(6) In the [F6 cases mentioned in section 25(2), (3), (6) and (7)], sections 32(3) and 34 also apply to directions given under this section.

(7) In the [F7 cases mentioned in section 25(4) and (5)], sections 33(3) and 34 also apply to directions given under this section.

[F8 (8) In the case of an investigation conducted by virtue of section 25(2) or (6), this section does not apply if a person has produced evidence to the [F9 CMA] in connection with the investigation that satisfies it on the balance of probabilities that, in the event of it reaching the basic infringement conclusion, it would also reach the conclusion that the suspected agreement is exempt from the Chapter I prohibition as a result of section 9(1); and in this subsection “the basic infringement conclusion” is the conclusion that there is an agreement which—

(a) may affect trade within the United Kingdom, and

(b) has as its object or effect the prevention, restriction or distortion of competition within the United Kingdom.

(9) In the case of an investigation conducted by virtue of section 25(3) or (7), this section does not apply if a person has produced evidence to the [F9 CMA] in connection with the investigation that satisfies it on the balance of probabilities that, in the event of it reaching the basic infringement conclusion, it would also reach the conclusion that the suspected agreement is an agreement to which the prohibition in [F10 Article 101(1)] is inapplicable because the agreement satisfies the conditions in [F10 Article 101(3)]; and in this subsection “the basic infringement conclusion” is the conclusion that there is an agreement which—

(a) may affect trade between Member States, and

(b) has as its object or effect the prevention, restriction or distortion of competition within] [F11 the European Union].

Textual Amendments

F1 S. 35(1) substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 1 para. 21(2)

F2 Words in s. 35(1)-(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 19 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F3 Words in s. 35 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(27); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F4 Words in s. 35(2)(a) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 43, 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)

F5 S. 35(5) substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 1 para. 21(3)

F6 Words in s. 35(6) substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 1 para. 21(4)

F7 Words in s. 35(7) substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 1 para. 21(5)

F8 S. 35(8)(9) inserted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 1 para. 21(6)

F9 Word in s. 35(8)(9) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 19 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F10 Words in s. 35(9) substituted (1.8.2012) by The Treaty of Lisbon (Changes in Terminology or Numbering) Order 2012 (S.I. 2012/1809), art. 2(1), Sch. Pt. 1 (with art. 2(2))

F11 Words in Act substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011 (S.I. 2011/1043), arts. 2, 3, 4 (with arts. 3(2)(3), 4(2), 6(4)(5))

Modifications etc. (not altering text)

C1 S. 35(2) modified by 1991 c. 56, s. 110A(7)(b)(8) (as substituted (1.11.2016) by Water Act 2014 (c. 21), ss. 9(1), 94(3) (with s. 9(2)(3)); S.I. 2016/1007, art. 2(c)(i))

C2 S. 35(2) modified by 1991 c. 56, s. 110B(5)(b) (as substituted (1.11.2016) by Water Act 2014 (c. 21), ss. 9(1), 94(3) (with s. 9(2)(3)); S.I. 2016/1007, art. 2(c)(i))

C3 S. 35(2) modified by 1991 c. 56, s. 117E(7)(b) (with s. 117E(8)) (as inserted (1.4.2017 for specified purposes) by Water Act 2014 (c. 21), s. 94(3), Sch. 4; S.I. 2017/462, art. 3(j))

C4 S. 35(2) modified by 1991 c. 56, s. 66D(7)(b) (with s. 66D(8)) (as substituted (1.4.2017) by Water Act 2014 (c. 21), s. 94(3), Sch. 2 para. 3; S.I. 2017/462, art. 3(i)(iii) (with arts. 6-9))

C5 S. 35(2) modified by 1991 c. 56, s. 105ZA(9)(b) (with s. 105ZA(10)) (as inserted (1.10.2017 for E.) by Water Act 2014 (c. 21), ss. 11(3), 94(3); S.I. 2017/462, art. 4(b))

C6 S. 35(2) modified by 1991 c. 56, s. 105ZB(4)(b) (with s. 105ZB(5)) (as inserted (1.10.2017 for E.) by Water Act 2014 (c. 21), ss. 11(3), 94(3); S.I. 2017/462, art. 4(b))

C7 S. 35(2) modified by 1991 c. 56, s. 51B(9)(b) (with s. 51B(10)) (as substituted (1.10.2017 for E.) by Water Act 2014 (c. 21), ss. 10(3), 94(3); S.I. 2017/462, art. 4(a) (with art. 15))

C8 S. 35(2) modified by 1991 c. 56, s. 51C(4)(b) (with s. 51C(5)) (as substituted (1.10.2017 for E.) by Water Act 2014 (c. 21), ss. 10(3), 94(3); S.I. 2017/462, art. 4(a) (with art. 15))