Fair Trading Act 1973

Powers for Director to require information U.K.

44 General power for Director to require information. U.K.

(1) Where it appears to the Director that there are grounds for believing—

(a) that a monopoly situation may exist in relation to the supply of goods or services of any description, or in relation to exports of goods of any description from the United Kingdom, and

(b) that in accordance with the following provisions of this Part of this Act he would not be precluded from making a monopoly reference to the Commission with respect to the existence or possible existence of that situation,

[F1 the Director may exercise the powers conferred by subsection (2) below for the purpose of assisting him in determining whether to take either of the following decisions with regard to that situation.]

[F2 (1A) Those decisions are—

(a) whether to make a monopoly reference with respect to the existence or possible existence of the situation;

(b) whether, instead, to make a proposal under section 56A below for the Secretary of State to accept undertakings.]

[F3 (2) In the circumstances and for the purpose mentioned in subsection (1) above, the Director may—

(a) require any person within subsection (3) below to produce to the Director, at a specified time and place—

(i) any specified documents, or

(ii) any document which falls within a specified category,

which are in his custody or under his control and which are relevant;

(b) require any person within subsection (3) below who is carrying on a business to give the Director specified estimates, forecasts, returns, or other information, and specify the time at which and the form and manner in which the estimates, forecasts, returns or information are to be given;

(c) enter any premises used by a person within subsection (3) below for business purposes, and—

(i) require any person on the premises to produce any documents on the premises which are in his custody or under his control and which are relevant;

(ii) require any person on the premises to give the Director such explanation of the documents as he may require.

(3) A person is within this subsection if—

(a) he produces goods of the description in question in the United Kingdom;

(b) he supplies goods or (as the case may be) services of the description in question in the United Kingdom; or

(c) such goods (or services) are supplied to him in the United Kingdom.

(4) The power to impose a requirement under subsection (2)(a) or (b) above is to be exercised by notice in writing served on the person on whom the requirement is imposed; and “specified” in those provisions means specified or otherwise described in the notice, and “specify” is to be read accordingly.

(5) The power under subsection (2)(a) above to require a person (“the person notified”) to produce a document includes power—

(a) if the document is produced—

(i) to take copies of it or extracts from it;

(ii) to require the person notified, or any person who is a present or past officer of his, or is or was at any time employed by him, to provide an explanation of the document;

(b) if the document is not produced, to require the person notified to state, to the best of his knowledge and belief, where it is.

(6) Nothing in this section confers power to compel any person—

(a) to produce any document which he could not be compelled to produce in civil proceedings before the High Court or, in Scotland, the Court of Session; or

(b) in complying with any requirement for the giving of information, to give any information which he could not be compelled to give in evidence in such proceedings.

(7) No person has to comply with a requirement imposed under subsection (2) above by a person acting under an authorisation under paragraph 7 of Schedule 1 to this Act unless evidence of the authorisation has, if required, been produced.

(8) For the purposes of subsection (2) above—

(a) a document is relevant if—

(i) it is relevant to a decision mentioned in subsection (1A) above; and

(ii) the powers conferred by this section are exercised in relation to the document for the purpose of assisting the Director in determining whether to take that decision;

(b) “document” includes information recorded in any form; and

(c) in relation to information recorded otherwise than in legible form, the power to require its production includes power to require production of it in legible form, so far as the means to do so are within the custody or under the control of the person on whom the requirement is imposed.]

Textual Amendments

F1 Words in s. 44(1) substituted (1.4.1999) by 1998 c. 41, ss. 54(1), 66(2)(5), Sch. 10 Pt. I para. 1 (with s. 73); S.I. 1999/505, art. 2, Sch. 2

F2 S. 44(1A) inserted (1.4.1999) by 1998 c. 41, ss. 54, 66(3)(5), Sch. 10 Pt. I para. 1 (with s. 73); S.I. 1999/505, art. 2, Sch. 2

F3 s. 44(2) substituted (1.4.1999) by 1998 c. 41, ss. 54(1), 66(4)(5), Sch. 10 Pt. I para. 1 (with s. 73); S.I. 1999/505, art. 2, Sch. 2

Modifications etc. (not altering text)

C1 Power to apply s. 44 with modifications conferred by Competition Act 1980 (c. 21), ss. 2(5), 33(5)

Ss. 44, 45 modified by Telecommunications Act 1984 (c. 12, SIF 96), s. 50(2)(a)

Ss. 44, 45 modified (E.W.) by Water Act 1989 (c. 15, SIF 130), s. 28(2)(a)

Ss. 44, 45 modified (E.W.S.) by Electricity Act 1989 (c. 29, SIF 44:1), s. 43(2)(a)

S. 44: certain functions transferred (1.4.1992) by S.I. 1992/231 (N.I. 1), art. 46(2)(a)(4); S.R. 1992/117, art. 3(1)

S. 44: certain functions transferred (E.W.S.) (1.4.1994) by 1993 c. 43, s. 67(2)(a)(4); S.I. 1994/571, art. 5

S. 44: certain functions transferred (E.W.S.) (1.3.1996) by 1986 c. 44, s. 36A (as inserted (1.3.1996) by 1995 c. 45, s. 10(1), Sch. 3 para. 43; S.I. 1996/218, art. 2)

S. 44: functions transferred (N.I.) (10.6.1999) by S.I. 1996/275 (N.I. 2), art. 23(2)(a) (with Sch. 7 paras. 2, 3(2)); S.R. 1996/216, art. 2

C2 S. 44 amended (1.2.2001) by 2000 c. 38, ss. 86(1)(2), 87, 89 (with s. 106); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to transitional provision and saving in Sch. 2 Pt. II)

F4 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U.K.

Textual Amendments

F4 S. 45 repealed (1.4.1999) by 1998 c. 41, s. 74(1)(3), Sch. 12 para. 1(8), Sch. 14 Pt. I (with s. 73); S.I. 1999/505, art. 2, Sch. 2

46 Supplementary provisions as to requirements to furnish information. U.K.

F5 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F5 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F6

[F7 (4) Any person who refuses or wilfully neglects to comply with a requirement imposed under section 44(2) above is guilty of an offence and liable—

(a) on summary conviction, to a fine not exceeding the prescribed sum, or

(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.

(5) If a person is charged with an offence under subsection (4) in respect of a requirement to produce a document, it is a defence for him to prove—

(a) that the document was not in his possession or under his control; and

(b) that it was not reasonably practicable for him to comply with the requirement.

(6) If a person is charged with an offence under subsection (4) in respect of a requirement—

(a) to provide an explanation of a document, or

(b) to state where a document is to be found,

it is a defence for him to prove that he had a reasonable excuse for failing to comply with the requirement.

(7) A person who intentionally obstructs the Director in the exercise of his powers under section 44 is guilty of an offence and liable—

(a) on summary conviction, to a fine not exceeding the prescribed sum;

(b) on conviction on indictment, to a fine.

(8) A person who wilfully alters, suppresses or destroys any document which he has been required to produce under section 44(2) is guilty of an offence and liable—

(a) on summary conviction, to a fine not exceeding the prescribed sum;

(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.]

Textual Amendments

F5 S. 46(1)(2) omitted (1.4.1999) by virtue of 1998 c. 41, ss. 54, 67(2), Sch. 10 Pt. I para. 1 (with s. 73); S.I. 1999/505, art. 2, Sch. 2

F6 S. 46(3) repealed by Companies Act 1989 (c. 40, SIF 27), ss. 153, 212, Sch. 20 para. 1, Sch. 24

F7 S. 46(4)-(8) inserted (1.4.1999) by 1998 c. 41, ss. 54, 67(3), Sch. 10 Pt. I para. 1 (with s. 73); S.I. 1999/505, art. 2, Sch. 2

Modifications etc. (not altering text)

C3 Power to apply S. 46 with modification conferred by Competition Act 1980 (c. 21), ss. 2(5), 33(5)