Competition Act 1980

4 Undertakings in consequence of Director’s reports. U.K.

[F1 (1) Where it appears to the Director—

(a) that there are reasonable grounds for believing that any person is pursuing, or has pursued, a course of conduct which constitutes an anti-competitive practice,

(b) that the practice may operate, now or in future, or have operated, against the public interest, and

(c) that an undertaking offered to be given to the Director by that person, or by a person associated with that person, would remedy or prevent effects adverse to the public interest which the practice may now or in future have,

he may, at any time before making a reference under section 5(1)(a) below in relation to the course of conduct in question, accept the undertaking by giving notice to the person by whom it is offered.

(2) The Director may not accept an undertaking under subsection (1) above unless he has—

(a) arranged for the publication of an appropriate notice, and

(b) considered any representations made to him in accordance with the notice.

(3) Publication under subsection (2)(a) above shall be in such manner as the Director considers most suitable for bringing the notice to the attention of persons who, in his opinion, would, if the course of conduct in question were the subject of a reference under section 5(1)(a) below, be affected by the reference or be likely to have an interest in it.

(3A) In subsection (2)(a) above, the reference to an appropriate notice is to a notice which—

(a) states that the Director is proposing to exercise his power under subsection (1) above,

(b) identifies the course of conduct whose pursuit prompts the exercise of that power,

(c) identifies the person who the Director believes is pursuing, or has pursued, that course of conduct,

(d) identifies the goods or services in relation to which the Director believes that person is pursuing, or has pursued, that course of conduct,

(e) specifies the effects which the Director has identified as effects adverse to the public interest which that course of conduct may now or in future have,

(f) sets out the terms of the undertaking which the Director is proposing to accept,

(g) identifies the person by whom the undertaking is to be given, and

(h) specifies a deadline for the making to the Director of representations about what he proposes to do.

(3B) Once the Director has considered any representations made to him in accordance with a notice under paragraph (a) of subsection (2) above, that subsection shall not apply to the acceptance of a modified version of the undertaking set out in the notice.]

(4) It shall be the duty of the Director—

[F2 (a) to arrange for—

(i) any undertaking accepted by him under this section, and

(ii) any variation or release of such an undertaking after the passing of the Companies Act 1989,

to be published in such manner as appears to him to be appropriate,]

(b) to keep under review the carrying out of any such undertaking and from time to time to consider whether, by reason of any change of circumstances, the undertaking is no longer appropriate and either the person concerned can be released from the undertaking or the undertaking needs to be varied or superseded by a new undertaking, and

(c) if it appears to him that the person by whom an undertaking was given has failed to carry it out, to give that person notice of that fact.

(5) If at any time the Director concludes under subsection (4)(b) above—

(a) that any person can be released from an undertaking, or

(b) that an undertaking needs to be varied or superseded by a new undertaking,

he shall give notice to that person stating that he is so released, or specifying the variation or, as the case may be, the new undertaking which in his opinion is required.

(6) Where a notice is served on any person under subsection (5) above specifying a variation or new undertaking, the notice shall state the change of circumstances by virtue of which the notice is served.

(7) Subject to subsection (8) below, the Director may at any time, by notice given to the person concerned—

(a) agree to the continuation of an undertaking in relation to which he has given notice under subsection (5) above specifying a variation or new undertaking, or

(b) accept a new or varied undertaking which is offered by that person as a result of such a notice.

(8) If the Director makes a reference under section 5 below in relation to a notice under subsection (5) above, he shall not, after the reference has been made, agree to the continuation of the undertaking in relation to which that notice was given or accept a new or varied undertaking which is offered as a result of that notice.

(9) The Secretary of State may by regulations prescribe the manner in which any notice is to be given under this section, and the evidence which is to be sufficient evidence of its having been given, and of its contents and authenticity.

[F3 (10) Subsection (6) of section 2 above shall apply for the purposes of this section as it applies for the purposes of that.]

Textual Amendments

F1 S. 4(1)-(3B) substituted for s. 4(1)-(3) (3.1.1995) by 1994 c. 40, ss. 12(4), 82(2)

F2 S. 4(4)(a) substituted by Companies Act 1989 (c. 40, SIF 27), s. 153, Sch. 20 para. 22

F3 S. 4(10) inserted (3.1.1995) by 1994 c. 40, ss. 12(6), 82(2)

Modifications etc. (not altering text)

C1 S. 4 modified (transfer of functions) by Telecommunications Act 1984 (c. 12, SIF 96), s. 50(3) and (E.W.S.) by Electricity Act 1989 (c. 29, SIF 44:1), s. 43(3)

S. 4 amended (E.W.) (1.12.1991) by Water Industry Act 1991 (c. 56, SIF 130), s. 31(4)(c), 35(4), 223(2) (with ss. 82(3), 186(1), 222(1), Sch. 14 para. 6)

C2 S. 4 modified (transfer of functions) (1.4.1992) by S.I. 1992/231, art. 46(3)(4); S.R. 1992/117, art. 3(1)

C3 S. 4 modified (transfer of functions) and amended (E.W.S.) (1.4.1994) by 1993 c. 43, s. 67(3)(4); S.I. 1994/571, art. 5

Ss. 2-10 modified (N.I.) (10.6.1996) by S.I. 1996/275 (N.I. 2), art. 23(6) (with Sch. 7 paras. 2, 3(2)); S.R. 1996/216, art. 2

C4 S. 4 extended (3.1.1995) by 1994 c. 40, ss. 12(7), 82(2), Sch. 4 para. 1

C5 Ss. 2-10, 16: certain functions transferred (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)

Ss. 2-10, 16: certain functions transferred (N.I.) (10.6.1996) by S.I. 1996/275 (N.I. 2), art. 23(3) (with Sch. 7 paras. 2, 3(2)); S.R. 1996/216, art. 2