Fair Trading Act 1973

88 Action by Director in consequence of report of Commission on monopoly or merger reference. U.K.

(1) Where a report of the Commission on a monopoly reference, or on a merger reference other than a newspaper merger reference, as laid before Parliament,—

(a) in the case of a monopoly reference, sets out such conclusions as are mentioned in section 56(1) of this Act, or

(b) in the case of a merger reference, sets out such conclusions as are mentioned in section 73(1) or in section 75(4)(e) of this Act,

and a copy of the report is transmitted to the Director under section 86 of this Act, it shall be the duty of the Director, [F1 to comply with any request of the appropriate Minister or Ministers to consult with any persons mentioned in the request (referred to below in this section as “the relevant parties”)] with a view to obtaining from them undertakings to take action indicated in the request made to the Director as being action requisite, in the opinion of the appropriate Minister or Ministers, for the purpose of remedying or preventing the adverse effects specified in the report.

(2) The Director shall report to the appropriate Minister or Ministers the outcome of his consultations under the preceding subsection; and if any undertaking is given by any of the relevant parties to take action indicated in the request made to the Director as mentioned in that subsection (in this section referred to as an “appropriate undertaking”) the Minister to whom the undertaking is given shall furnish particulars of it to the Director.

[F2 (2A) Where—

(a) an undertaking is given under this section after the commencement of this subsection, or

(b) an undertaking given under this section is varied or released after that time,

the Minister to whom the undertaking is or was given shall cause the undertaking or, as the case may be, the variation or release to be published in such manner as the Minister may consider appropriate.]

(3) Where in his consultations under subsection (1) of this section the Director seeks to obtain an appropriate undertaking from any of the relevant parties, and either—

(a) he is satisfied that no such undertaking is likely to be given by that party within a reasonable time, or

(b) having allowed such time as in his opinion is reasonable for the purpose, he is satisfied that no such undertaking has been given by that party,

the Director shall give such advice to the appropriate Minister or Ministers as he may think proper in the circumstances (including, if the Director thinks fit, advice with respect to the exercise by the appropriate Minister or Ministers of his or their powers under section 56 or section 73 of this Act, as the case may be).

(4) Where the Director has made a report under subsection (2) of this section, and particulars of an undertaking given by any of the relevant parties have been furnished to the Director in accordance with that subsection, it shall be the duty of the Director—

(a) to keep under review the carrying out of that undertaking, and from time to time to consider whether, by reason of any change of circumstances, [F3 the undertaking is no longer appropriate and either the relevant parties (or any of them) can be released from the undertaking or the undertaking] needs to be varied or to be superseded by a new undertaking, and

(b) if it appears to him [F4 that any person can be so released or that an undertaking] has not been or is not being fulfilled, or needs to be varied or superseded, to give such advice to the appropriate Minister or Ministers as he may think proper in the circumstances.

(5) Where, in consequence of a report of which a copy is transmitted to the Director under section 86 of this Act, an order is made under section 56 or section 73 of this Act in relation to any of the matters to which the report relates, it shall be the duty of the Director to keep under review the action (if any) taken in compliance with that order, and from time to time to consider whether, by reason of any change of circumstances, the order should be varied [F5 or revoked] or should be superseded by a new order, and—

(a) if it appears to him that the order has in any respect not been complied with, to consider whether any action (by way of proceedings in accordance with section 93 of this Act or otherwise) should be taken for the purpose of securing compliance with the order, and (where in his opinion it is appropriate to do so) to take such action himself or give advice to any Minister or other person by whom such action might be taken, or

(b) if it appears to him that the order needs to be varied [F5 or revoked] or to be superseded by a new order, to give such advice to the appropriate Minister or Ministers as he may think proper in the circumstances.

(6) In this section . . . F6 , in relation to a report of the Commission, “the appropriate Minister or Ministers” means the Minister or Ministers to whom the report is made, “undertaking” means an undertaking given to that Minister or to one of those Ministers, as the case may be, and, in subsections (3) and (5) of this section, the references to section 73 of this Act shall be construed as including references to that section as applied by section 75(4) of this Act.

Textual Amendments

F1 Words substituted by Companies Act 1989 (c. 40, SIF 27), s. 153, Sch. 20 para. 14(1)(5)

F2 S. 88 (2A) inserted by Companies Act 1989 (c. 40, SIF 27), s. 153, Sch. 20 para. 14(2).

F3 Words substituted by Companies Act 1989 (c. 40, SIF 27), s. 153, Sch. 20 para. 14(3)(a)

F4 Words substituted by Companies Act 1989 (c. 40, SIF 27), s. 153, Sch. 20 para. 14(3)(b)

F5 Words inserted by Companies Act 1989 (c. 40, SIF 27), s. 153, Sch. 20 para. 14(3)

F6 Words repealed by Companies Act 1989 (c. 40, SIF 27), ss. 153, 212, Sch. 20 para. 14(4)(5), Sch. 24

Modifications etc. (not altering text)

C1 S. 88 amended (E.W.) (01.12.1991) by Water Industry Act 1991 (c. 56, SIF 130), ss. 31(4)(b), 35(4), 223(2) (with ss. 82(3), 186(1), 188, 222(1), Sch. 14 para. 6).

S. 88 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)

S. 88 amended (1.2.2001) by 2000 c. 38, s. 86(4)(a)(5) (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)

S. 88 amended (1.2.2001) by 2000 c. 38, s. 86(7)(a) (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)

S. 88(4) amended by Price Commission Act 1977 (c. 33), s. 19(3)

S. 88(5) amended by Price Commission Act 1977 (c. 33), s. 19(4)

S. 88 modified by Telecommunications Act 1984 (c. 12, SIF 96), s. 50(2)

S. 88 modified (E.W.) by Water Act 1989 (c. 15, SIF 130), s. 28(2)

S. 88 modified (E.W.S.) by Electricity Act 1989 (c. 29, SIF 44:1), s. 43(2)

S. 88: certain functions transferred (1.4.1992) by S.I. 1992/231 (N.I. 1), art. 46(2)(b); S.R. 117, art.3(1)

S. 88 modified (1.4.1992) by S.I. 1992/231 (N.I. 1), art. 46(2); S.R. 1992/117, art.3(1)

S. 88: certain functions transferred (E.W.S.) (1.4.1994) by 1993 c. 43, s. 67(2)(b)(4); S.I. 1994/571, art. 5

S. 88: certain functions transferred (E.W.S.) (1.3.1996) by 1986 c. 44, s. 36A(2) (as inserted (1.3.1996) by 1995 c. 45, s. 10(1), Sch. 3 para. 43; S.I. 1996/218, art. 2)

S. 88 amended (E.W.S.) (1.4.1994) by 1993 c. 43, s. 67(2)(4); S.I. 1994/571, art. 5.

S. 88: functions transferred (N.I.) (10.6.1996) by S.I. 1996/275 (N.I. 2), art. 23(2)(b) (with Sch. 7 paras. 2, 3(2)); S.R. 1996/216, art. 2

S. 88 modified (N.I.) (10.6.1996) by S.I. 1996/275 (N.I. 2), art. 23(6)(a) (with Sch. 7 paras. 2, 3(2)); S.R. 1996/216, art. 2

S. 88 amended (N.I.) (10.6.1996) by S.I. 1996/275 (N.I. 2), art. 23(2) (with Sch. 7 paras. 2, 3(2)); S.R. 1996/216, art. 2

S. 88 amended (E.W.S.) (1.3.1996) by 1986 c. 44, s.36A(2) (as inserted (1.3.1996) by 1995 c. 45, s. 10(1), Sch. 3 para. 43; S.I. 1996/218, art. 2)

C2 S. 88(2)-(5) applied (with modifications) (28.8.1996) by S.I. 1996/2199, reg. 22(2)