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Enterprise Act 2002

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OtherU.K.

179 Review of decisions under Part 4U.K.

(1)Any person aggrieved by a decision of the [F1CMA], the appropriate Minister, [F2or the Secretary of State] in connection with a reference or possible reference under this Part may apply to the Competition Appeal Tribunal for a review of that decision.

(2)For this purpose “decision”—

[F3(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));]

(a)does not include a decision to impose a penalty under [F4section 174A(1) or (3)]; but

(b)includes a failure to take a decision permitted or required by this Part in connection with a reference or possible reference.

(3)Except in so far as a direction to the contrary is given by the Competition Appeal Tribunal, the effect of the decision is not suspended by reason of the making of the application.

(4)In determining such an application the Competition Appeal Tribunal shall apply the same principles as would be applied by a court on an application for judicial review.

(5)The Competition Appeal Tribunal may—

(a)dismiss the application 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, refer the matter back to the original decision maker with a direction to reconsider and make a new decision in accordance with the ruling of the Competition Appeal Tribunal.

(6)An appeal lies on any point of law arising from a decision of the Competition Appeal Tribunal under this section to the appropriate court.

(7)An appeal under subsection (6) requires the permission of the Tribunal or the appropriate court.

(8)In this section—

  • “the appropriate court” means the Court of Appeal or, in the case of Tribunal proceedings in Scotland, the Court of Session; and

  • “Tribunal rules” has the meaning given by section 15(1).

Textual Amendments

Modifications etc. (not altering text)

C5Pt. 4 certain functions made exercisable concurrently (1.4.2014) by Financial Services (Banking Reform) Act 2013 (c. 33), s. 59(1)-(5), 148(5); S.I. 2014/823, art.

180 OffencesU.K.

(1)Sections 117 (false or misleading information) and 125 (offences by bodies corporate) shall apply, with the modifications mentioned in subsection (2) below, for the purposes of this Part as they apply for the purposes of Part 3.

(2)Section 117 shall, in its application by virtue of subsection (1) above, have effect as if references to the Secretary of State included references to the appropriate Minister so far as he is not the Secretary of State acting alone [F5and as if the references to OFCOM were omitted] .

Textual Amendments

F5Words in s. 180(2) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389(1), 411(2)(3), Sch. 16 para. 26 (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (subject to arts. 3(3), 11)

181 Orders [F6and regulations] under Part 4U.K.

(1)Any power of the Secretary of State to make an order [F7or regulations] under this Part shall be exercisable by statutory instrument.

(2)Any power of the Secretary of State to make an order [F8or regulations] under this Part—

(a)may be exercised so as to make different provision for different cases or different purposes;

(b)includes power to make such incidental, supplementary, consequential, transitory, transitional or saving provision as the Secretary of State considers appropriate.

(3)The power of the Secretary of State under section [F9131C(1), 136(9), 137(3), 138B(6)], 144(2), 153(3) or 168(8) as extended by subsection (2) above may be exercised by modifying any enactment comprised in or made under this Act, or any other enactment.

(4)An order made by the Secretary of State under section [F10131C(1), 137(3), 138B(6)], 144(2), 158, 160 [F11, 161, [F12174D(4) or (5)] or under section 114(3)(b) or (4)(b) as applied by [F13section 174D] [F13section 174A(10)]], [F14shall be subject to annulment in pursuance of a resolution of either House of Parliament] [F14is subject to the negative procedure].

[F15(4A)Regulations made under section 167B(9) or 174D(11) are subject to the negative procedure.]

(5)[F16No order shall be made] [F16An order made] by the Secretary of State under section 136(9) or 168(8), or section 128(6) as applied by section 183(2), [F17unless a draft of it has been laid before, and approved by a resolution of, each House of Parliament] [F17is subject to the affirmative procedure].

[F18(5A)Regulations made under paragraph (b) of the definition of “qualifying remedial action” in section 161B(3), or under section 167B(7) or 174D(6A), are subject to the affirmative procedure.

(5B)Any provision that may be made by order or regulations under this Part subject to the negative procedure may instead be made by order or regulations subject to the affirmative procedure.]

(6)An order made by the Secretary of State under section 153(3) shall be laid before Parliament after being made and shall cease to have effect unless approved, within the period of 28 days beginning with the day on which it is made, by a resolution of each House of Parliament.

(7)In calculating the period of 28 days mentioned in subsection (6), no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.

(8)If an order made by the Secretary of State ceases to have effect by virtue of subsection (6), any modification made by it of an enactment is repealed (and the previous enactment revived) but without prejudice to the validity of anything done in connection with that modification before the order ceased to have effect and without prejudice to the making of a new order.

(9)If, apart from this subsection, an order made by the Secretary of State under section 153(3) would be treated for the purposes of the standing orders of either House of Parliament as a hybrid instrument, it shall proceed in that House as if it were not such an instrument.

(10)References in this section to an order made under this Part include references to an order made under section F19... 114(3)(b) or (4)(b) as applied by section [F20174D] [F20174A(10)] and an order made under section 128(6) as applied by section 183(2).

[F21(11)Where orders or regulations under this Part are subject to “the affirmative procedure”, the orders or regulations may not be made unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, each House of Parliament.

(12)Where orders or regulations under this Act are subject to “the negative procedure”, the statutory instrument containing them is subject to annulment in pursuance of a resolution of either House of Parliament.]

Textual Amendments

F9Words in s. 181(3) substituted (25.4.2013 for specified purposes, 1.4.2014 in so far as not already in force) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(1)(i)(3), Sch. 12 para. 16(2); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F10Words in s. 181(4) substituted (25.4.2013 for specified purposes, 1.4.2014 in so far as not already in force) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(1)(i)(3), Sch. 12 para. 16(3); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F11Words in s. 181(4) substituted (25.4.2013 for specified purposes, 1.4.2014 in so far as not already in force) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(1)(i)(3), Sch. 11 para. 6(2); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F12Words in s. 181(4) omitted (24.5.2024 for specified purposes) by virtue of Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(2)(c), Sch. 14 para. 3(5)(a) (with Sch. 19)

182 Service of documents: Part 4U.K.

Section 126 shall apply for the purposes of this Part as it applies for the purposes of Part 3.

183 Interpretation: Part 4U.K.

(1)In this Part, unless the context otherwise requires—

  • “action” includes omission; and references to the taking of action include references to refraining from action;

  • “business” includes a professional practice and includes any other undertaking which is carried on for gain or reward or which is an undertaking in the course of which goods or services are supplied otherwise than free of charge;

  • “change of circumstances” includes any discovery that information has been supplied which is false or misleading in a material respect;

  • “consumer” means any person who is—

    (a)

    a person to whom goods are or are sought to be supplied (whether by way of sale or otherwise) in the course of a business carried on by the person supplying or seeking to supply them; or

    (b)

    a person for whom services are or are sought to be supplied in the course of a business carried on by the person supplying or seeking to supply them;

    and who does not receive or seek to receive the goods or services in the course of a business carried on by him;

  • “customer” includes a customer who is not a consumer;

  • “enactment” includes an Act of the Scottish Parliament, Northern Ireland legislation and an enactment comprised in subordinate legislation, and includes an enactment whenever passed or made;

  • “goods” includes buildings and other structures, and also includes ships, aircraft and hovercraft;

  • “Minister of the Crown” means the holder of an office in Her Majesty’s Government in the United Kingdom and includes the Treasury;

  • “modify” includes amend or repeal;

  • “notice” means notice in writing;

  • “subordinate legislation” has the same meaning as in the Interpretation Act 1978 (c. 30) and also includes an instrument made under an Act of the Scottish Parliament and an instrument made under Northern Ireland legislation; and

  • “supply”, in relation to the supply of goods, includes supply by way of sale, lease, hire or hire-purchase, and, in relation to buildings or other structures, includes the construction of them by a person for another person.

(2)Sections 127(1)(b) and (4) to (6) and 128 shall apply for the purposes of this Part as they apply for the purposes of Part 3.

(3)For the purposes of this Part a market investigation reference is finally determined if—

(a)[F22where the reference is made under section 131 or 132—]

(i)the period permitted by section 137 for preparing and publishing a report under section 136 has expired and no such report has been prepared and published;

(ii)such a report has been prepared and published within the period permitted by section 137 and contains the decision that there is no adverse effect on competition;

(iii)the [F23CMA] has decided under section 138(2) neither to accept undertakings under section 159 nor to make an order under section 161; or

(iv)the [F23CMA] has accepted an undertaking under section 159 or made an order under section 161;

(b)[F24where the reference is a restricted PI reference or a full PI reference— ]

(i)the period permitted by section 144 for the preparation of the report of the [F23CMA] under section 142 and for action to be taken in relation to it under section 143(1) or (3) [F25or (as the case may be) 143A(2) or (3)] has expired while the intervention notice is still in force and no such report has been so prepared or no such action has been taken;

(ii)the [F23CMA] has terminated under section 145(1) its investigation and the reference is finally determined under paragraph (a) above F26...;

(iii)the report of the [F23CMA] has been prepared under section 142 and published under section 143(1) [F27or (as the case may be) 143A(2)] within the period permitted by section 144;

(iv)the intervention notice was revoked and the reference is finally determined under paragraph (a) above F28...;

[F29(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;]

(vi)the Secretary of State has decided under section 146(2) that no eligible public interest consideration is relevant and the reference is finally determined under paragraph (a) above F30...;

[F31(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;]

(vii)the Secretary of State has decided under 146(2) that a public interest consideration is relevant but has decided under section 147(2) neither to accept an undertaking under section 159 nor to make an order under section 161; F32...

[F33(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;]

(viii)the Secretary of State has decided under section 146(2) that a public interest consideration is relevant and has accepted an undertaking under section 159 or made an order under section 161[F34; 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)For the purposes of this Part the time when a market investigation reference is finally determined is—

(a)in a case falling within subsection (3)(a)(i) or (b)(i), the expiry of the time concerned;

(b)in a case falling within subsection (3)(a)(ii) or (b)(iii), the publication of the report;

(c)in a case falling within subsection (3)(a)(iv) or (b)(viii) [F35or (ix)], the acceptance of the undertaking concerned or (as the case may be) the making of the order concerned; and

(d)in any other case, the making of the decision or last decision concerned or the taking of the action concerned.

(5)The references in subsection (4) to subsections (3)(a)(i), (ii) and (iv) include those enactments as applied by subsection (3)(b)(ii), (iv), (v)[F36, (vi) or (via)].

(6)In subsection (4)(c) the reference to the acceptance of the undertaking concerned or the making of the order concerned shall, in a case where the enforcement action concerned involves the acceptance of a group of undertakings, the making of a group of orders or the acceptance and making of a group of undertakings and orders, be treated as a reference to the acceptance or making of the last undertaking or order in the group; but undertakings or orders which vary, supersede or revoke earlier undertakings or orders shall be disregarded for the purposes of subsections (3)(a)(iv) and (b)(viii) [F37and (ix)] and (4)(c).

(7)Any duty to publish which is imposed on a person by this Part shall, unless the context otherwise requires, be construed as a duty on that person to publish in such manner as that person considers appropriate for the purpose of bringing the matter concerned to the attention of those likely to be affected by it.

Textual Amendments

184 Index of defined expressions: Part 4U.K.

In this Part, the expressions listed in the left-hand column have the meaning given by, or are to be interpreted in accordance with, the provisions listed in the right-hand column.

ExpressionProvision of this Act
Action (and the taking of action)Section 183(1)
Adverse effect on competitionSection 134(2) [F38and (2A)]
[F39Adverse public interest finding Section 146A(3)]
Appropriate MinisterSection 132(5)
BusinessSection 183(1)
Change of circumstancesSection 183(1)
[F40The CMA Section 273]
F41. . .F41. . .
ConsumerSection 183(1)
[F42Cross-market reference Section 131(6)]
CustomerSection 183(1)
Date of market investigation referenceSection 137(7)
Detrimental effect on customersSection 134(5)
EnactmentSection 183(1)
Enforcement orderSection 162(8)
Enforcement undertakingSection 162(8)
Feature of a marketSection 131(2)
Final determination of market investigation referenceSection 183(3) to (6)
[F43Full PI reference Section 140A(12)]
GoodsSection 183(1)
Intervention noticeSection 139(3)
Market for goods or servicesSection 131(6)
Market in the United KingdomSection 131(6)
Market investigation referenceSection 131(6)
[F44Market study notice Section 130A(1)
Market study reportSection 131B(4)]
Minister of the CrownSection 183(1)
ModifySection 183(1)
NoticeSection 183(1)
F41. . .F41. . .
[F45Ordinary reference Section 131(6)]
Public interest considerationSection 139(5)
Public interest consideration being finalisedSection 139(7)
[F46Public interest expert Section 141B(4)]
PublishSection 183(7)
Relevant customer benefitSection 134(8)
Relevant sectoral enactmentSection 136(7)
Relevant sectoral regulatorSection 136(8)
Reports of the [F47CMA]Section 177(5)
[F48Restricted PI reference Section 140A(12)]
Subordinate legislationSection 183(1)
Supply (in relation to the supply of goods)Section 183(1)
The supply of services (and a market for services etc.)Section 183(2)

Textual Amendments

F41Words in s. 184 table omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 209(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

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