The Competition Act 1998 (Carbon Dioxide) (Public Policy Exclusion) Order 2021

EXPLANATORY NOTE

(This note is not part of the Order)

This Order excludes from the Chapter I prohibition in the Competition Act 1998 (c. 41) agreements between CF and any distributor and agreements between two or more distributors which are for the purpose of preventing or mitigating disruption to the supply of CO₂ to distributors, consumers and essential users in the United Kingdom.

The Chapter I prohibition precludes agreements between undertakings, decisions by associations of undertakings or concerted practices which may affect trade within the United Kingdom and which have as their object or effect the prevention, restriction or distortion of competition within the United Kingdom. The Secretary of State, where satisfied that there are exceptional and compelling reasons of public policy for doing so, may exclude an agreement or an agreement of a particular description from the Chapter I prohibition. A provision of Part I of the Competition Act 1998 (and of this Order) which is expressed to apply to, or in relation to, an agreement is to be read as applying equally to, or in relation to, a decision by an association of undertakings or a concerted practice (but with any necessary modifications).

Article 3 of the Order specifies the activities to which an agreement must relate in order to qualify for an exclusion. Article 3(2)(a) specifies activities relating to the sharing of information between 30th September 2021 and 12th October 2021 (the CO₂ negotiation period) relating to the purchase of CO₂, specifically information regarding price, quantity, the term of any contract and the names of consumers. Article 3(2)(b) and (c) specify activities relating to the sharing of information and coordination with regards to the allocation, movement and distribution of CO₂ during the Chapter I exclusion period and information sharing regarding the day to day stock position and shortages of CO₂ during that period.

Article 4(1) grants an exclusion from the Chapter I prohibition in respect of agreements between the distributors relating to the activities specified in article 3(2)(b) and (c) and article 4(2) applies the exclusion retrospectively to any such agreements which were entered into between 30th September 2021 and the day before the day on which this Order comes into force. Article 4(3) grants an exclusion from the Chapter I prohibition retrospectively in respect of any agreements between CF and the distributors, or between the distributors, relating to the activities specified in article 3(2)(a) which were entered into during the CO₂ negotiation period.

Article 4 also sets out other requirements which an agreement must meet in order to qualify for exclusion.

Articles 5 and 6 provide for agreements to be notified to the Secretary of State and for a register of the agreements to be compiled and published by the Secretary of State.

Article 7 provides that the Order expires at the end of 31st January 2022.

No impact assessment has been prepared for this Order. An Explanatory Memorandum has been prepared for this Order and is available alongside this instrument on the UK Legislation website www.legislation.gov.uk.