Health and Social Care Act 2012

Powers of investigation E+W

10 (1) The following sections of Part 3 of the Enterprise Act 2002 (mergers) apply, with the modifications in sub-paragraphs [F1 (2A),] (3), (5), (6) and (8) to (11) for the purposes of a reference as they apply for the purposes of references under that Part— E+W

(a) section 109 (attendance of witnesses and production of documents),

(b) section 110 (enforcement of powers under section 109: general),

(c) section 111 (penalties),

(d) section 112 (penalties: main procedural requirements),

(e) section 113 (payments and interest by instalments),

(f) section 114 (appeals in relation to penalties),

(g) section 115 (recovery of penalties),

(h) section 116 (statement of policy),

(i) section 117 (offence of supplying false or misleading information), and

(j) section 125 (offences by bodies corporate) so far as relating to section 117.

(2) Those sections of that Part of that Act apply, with the modifications in sub-paragraphs [F2 (2A),] (4), (5) and (7) to (11), for the purposes of an investigation by the [F3 CMA] in the exercise of its functions under paragraph 8, as they apply for the purposes of an investigation on references under that Part.

[F4 (2A) Section 109, in its application by virtue of sub-paragraph (1) or (2), has effect as if—

(a) for subsection (A1), there were substituted—

“(A1) For the purposes of this section, the permitted purposes are the following—

(a) assisting the CMA in carrying out any functions exercisable by it in connection with a reference under Schedule 10 to the Health and Social Care Act 2012;

(b) assisting the CMA in carrying out any functions exercisable by it under paragraph 8 of that Schedule.”, and

(b) subsection (8A) were omitted.]

(3) Section 110, in its application by virtue of sub-paragraph (1), has effect as if—

(a) subsection (2) were omitted,

[F5 (aa) after subsection (3), there were inserted—

“(3A) No penalty shall be imposed by virtue of subsection (1), (3) or (5) if more than 4 weeks have passed since the publication of the report of the CMA on the reference concerned; but this subsection shall not apply in relation to any variation or substitution of the penalty which is permitted by virtue of this Part.”,]

(b) for subsections (5) to (8) there were substituted—

“(5) Where the Commission considers that a person has intentionally altered, suppressed or destroyed a document which he has been required to produce under section 109, it may impose a penalty in accordance with section 111.”, and

(c) in subsection (9), for the words from “or (3)” to “section 65(3))” there were substituted “, (3) or (5)”.

(4) Section 110, in its application by virtue of sub-paragraph (2), has effect as if—

(a) the modifications in sub-paragraph (3) were made, [F6 and]

[F7 (b) after subsection (3), there were inserted—

“(3A) No penalty shall be imposed by virtue of subsection (1), (3) or (5) if more than 4 weeks have passed since the relevant day; but this subsection shall not apply in relation to any variation or substitution of the penalty which is permitted by virtue of this Part.

(3AB) The relevant day for the purposes of subsection (3A) is—

(a) the day on which the CMA published a notice under paragraph 8(12) of Schedule 10 to the Health and Social Care Act 2012 in connection with the reference concerned, or

(b) if it has not given a direction under paragraph 8(1) of that Schedule in connection with the reference and within the permitted period, the latest day on which it was possible to give such a notice within that period.”.]

(5) Section 111, in its application by virtue of sub-paragraph (1) or (2), has effect as if—

(a) in subsection (1), for “or (3)” there were substituted “, (3) or (5)”, and

(b) in subsections (3) and (6), after “110(3)” there were inserted “or (5)”.

[F8 (6) Section 111(5)(b), in its application by virtue of sub-paragraph (1), has effect as if for sub-paragraph (ii) there were substituted—

“(ii) if earlier, the day on which the report of the CMA on the reference concerned is made or, if no such report is made within the period permitted for that purpose, the latest day on which it was possible to make the report within the permitted period.”.]

(7) Section 111(5)(b)(ii), in its application by virtue of sub-paragraph (2), has effect as if for sub-paragraph (ii) there were substituted—

“(ii) if earlier, the relevant day (which for the purposes of this subsection is to be construed in accordance with section [F9 110(3AB)]).”

(8) Section 112, in its application by virtue of sub-paragraph (1) or (2), has effect as if, in subsection (1), for “or (3)” there were substituted “, (3) or (5)”.

(9) Section 114, in its application by virtue of sub-paragraph (1) or (2), has effect as if, in subsection (1), for “or (3)” there were substituted “, (3) or (5)”.

(10) Section 115, in its application by virtue of sub-paragraph (1) or (2), has effect as if for “or (3)” there were substituted “, (3) or (5)”.

(11) Section 116, in its application by virtue of sub-paragraph (1) or (2), has effect as if, in subsection (2), for “or (3)” there were substituted “, (3) or (5)”.

(12) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 109 to 116 of that Act (including, in particular, provisions relating to the making of orders) have effect for the purposes of the application of those sections by virtue of sub-paragraph (1) or (2) in relation to those sections as applied by virtue of the sub-paragraph concerned.

(13) Accordingly, corresponding provisions of this Act do not have effect in relation to those sections as applied by virtue of the sub-paragraph concerned.

Textual Amendments

F1 Word in Sch. 10 para. 10(1) inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 195(2) (with art. 3, Sch. 2 para. 2)

F2 Word in Sch. 10 para. 10(2) inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 195(3) (with art. 3, Sch. 2 para. 2)

F3 Word in Sch. 10 para. 10(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 138(12); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F4 Sch. 10 para. 10(2A) inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 195(4) (with art. 3, Sch. 2 para. 2)

F5 Sch. 10 para. 10(3)(aa) inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 195(5) (with art. 3, Sch. 2 para. 2)

F6 Word in Sch. 10 para. 10(4)(a) inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 195(6)(a) (with art. 3, Sch. 2 para. 2)

F7 Sch. 10 para. 10(4)(b) substituted for Sch. 10 para. 10(4)(b)(c) (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 195(6)(a) (with art. 3, Sch. 2 para. 2)

F8 Sch. 10 para. 10(6) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 195(7) (with art. 3, Sch. 2 para. 2)

F9 Word in Sch. 10 para. 10(7) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 195(8) (with art. 3, Sch. 2 para. 2)

Commencement Information

I1 Sch. 10 para. 10 in force at 1.11.2012 by S.I. 2012/2657, art. 2(2)