SCHEDULES

SCHEDULE 4A Review of access charges by the Office of Rail and Road

Paragraphs 13 and 14: supplementary

15

F1(1)

For the purposes of the law relating to defamation, absolute privilege attaches to any notice under paragraph 13(4) or 14(3) above.

(2)

In giving any notice under paragraph 13(4) or 14(3) above, the F2CMA must have regard to the following considerations before disclosing any information.

(2A)

The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the F2CMA thinks is contrary to the public interest.

(2B)

The second consideration is the need to exclude from disclosure (so far as practicable)—

(a)

commercial information whose disclosure the F2CMA thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or

(b)

information relating to the private affairs of an individual whose disclosure the F2CMA thinks might significantly harm the individual’s interests.

(2C)

The third consideration is the extent to which the disclosure of the information mentioned in sub-paragraph (2B)(a) or (b) above is necessary for the purposes of the notice.

(2D)

The following sections of Part 3 of the Enterprise Act 2002 shall apply, F3as they had effect immediately before the relevant date and with the modifications mentioned in sub-paragraphs F4(2DA), (2E) and (2F) below, in relation to any investigation by the F5CMA for the purposes of the exercise of its functions under paragraph 13 or 14 above, as they F6applied immediately before that date for the purposes of any investigation on references under that Part—

(a)

section 109 (attendance of witnesses and production of documents etc.);

(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); and

(h)

section 116 (statement of policy).

F7(2DA)

Section 109 shall, in its application by virtue of sub-paragraph (2D) above, have effect as if—

(a)

for subsection (A1), there were substituted—

“A1

For the purposes of this section, a permitted purpose is assisting the CMA in carrying out any functions exercisable by it in connection with an investigation for the purposes of the exercise of its functions under paragraphs 13 or 14 of Schedule 4A to the Railways Act 1993.”, and

(b)

subsection (8A) were omitted.

(2E)

Section 110 shall, in its application by virtue of sub-paragraph (2D) above, have effect as if—

(a)

subsection (2) were omitted;

F8(b)

after subsection (3), there were inserted—

“(3A)

No penalty shall be imposed by virtue of subsection (1) or (3) if more than 4 weeks have passed since the sending of a copy to F9the Office of Rail and Road under paragraph 14 of Schedule 4A to the Railways Act 1993 of the relevant changes made by the CMA in connection with the reference concerned or, if no direction has been given by the CMA under paragraph 13 of that Schedule to that Act in connection with the reference concerned and within the period permitted for that purpose, the latest day on which it was possible to give such a direction within the permitted period; but this subsection shall not apply in relation to any variation or substitution of the penalty which is permitted by virtue of this Part.”; and

(c)

in subsection (9) the words from “or section" to “section 65(3))" were omitted.

(2F)

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

“(ii)

if earlier, the day on which a copy of the relevant changes made by the F10CMA in connection with the reference concerned is sent to F9the Office of Rail and Road under paragraph 14 of Schedule 4A to the Railways Act 1993 or, if no direction is given by the F10CMA under paragraph 13(1) of that Schedule to that Act in connection with the reference concerned and within the period permitted for that purpose, the latest day on which such a direction may be given within the permitted period. ".

(2G)

Section 117 of the Enterprise Act 2002 (false or misleading information) shall apply F11, as it had effect immediately before the relevant date, in relation to functions of the F12CMA in connection with the exercise of its functions under paragraph 13 or 14 above as it F13applied immediately before that date in relation to its functions under Part 3 of that Act but as if, in subsections (1)(a) and (2), F14—

(a)

the words “, OFCOM or the Secretary of State” were omitted; and

(b)

for the words “their functions” there were substituted “ its functions ”.

(2H)

Provisions of Part 3 of the Enterprise Act 2002 which F15, immediately before the relevant date, had effect for the purposes of sections 109 to 117 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of sub-paragraph (2D) or (2G) above, have effect in relation to those sections as applied by virtue of those sub-paragraphs F16as those provisions had effect immediately before that date.

(2I)

Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of those sub-paragraphs.

(3)

For the purpose of assisting the F17CMA in exercising their functions under paragraphs 13 and 14 above, F9the Office of Rail and Road shall give to the F17CMAF18(in addition to the information provided in accordance with paragraph 12(5) and (6)) any information in F19its possession which relates to matters relevant to the exercise of those functions and—

(a)

is requested by the F17CMA for that purpose; or

(b)

is information which, in his opinion, it would be appropriate for that purpose to give to the F17CMA without any such request;

and any other assistance which the F17CMA may require, and which it is within F19its power to give, in relation to any such matters.

(4)

For the purpose of exercising those functions, the F17CMA shall take account of

F20(a)

every revision of which they have been given notice under paragraph 12(6) of information provided under paragraph 1D; and

(b)

all information

given to them for that purpose under sub-paragraph (3) above.

F21(5)

In this paragraph “the relevant date” means the date on which section 143 of the Digital Markets, Competition and Consumers Act 2024 came into force.