Part I The Provision of Railway Services

Consumer protection

67F1Competition functions of F2the Office of Rail and Road

F3(1)

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F4(2)

The functions to which subsection (2A) below applies shall be concurrent functions of F2the Office of Rail and Road and the F5CMA.

(2A)

This subsection applies to the functions of the F6CMA under Part 4 of the Enterprise Act 2002 (other than sections 166F7, 171 and 174E) so far as F8those functions—

(a)

are exercisable by the CMA Board (within the meaning of Schedule 4 to the Enterprise and Regulatory Reform Act 2013), and

(b)

relate to the supply of services relating to railways.

(2B)

So far as necessary for the purposes of, or in connection with, subsections (2) and (2A) F9above—

(a)

references in Part 4 of the Act of 2002 to the F10CMA (including references in provisions of that Act applied by that Part) shall be construed as including references to F2the Office of Rail and Road (except in sections 166F11, 171 and 174E of that Act and in any other provision of that Act where the context otherwise F12requires);

(b)

references in that Part to section 5 of the Act of 2002 are to be construed as including references to section 69(1) of this Act.

F13(2C)

Section 130A of the Act of 2002 is to have effect in its application in relation to F2the Office of Rail and Road by virtue of subsections (2) and (2A)—

(a)

as if for subsection (1) of that section there were substituted—

“(1)

Where F2the Office of Rail and Road—

(a)

is proposing to carry out its functions under section 69(1) of the Railways Act 1993 in relation to a matter for the purposes mentioned in subsection (2), and

(b)

considers that the matter is one in respect of which it would be appropriate for it to exercise its powers under section 174 (investigation) in connection with deciding whether to make a reference under section 131,

F2the Office of Rail and Road must publish a notice under this section (referred to in this Part as a “market study notice”).”, and

(b)

as if in subsection (2)(a) of that section, for “the acquisition or supply of goods or services of one or more than one description in the United Kingdom” there were substituted “the supply of services relating to railways within the meaning of section 67(3ZA) of the Railways Act 1993”.

F14F15(3)

F2The Office of Rail and Road shall be entitled to exercise, concurrently with the F16CMA, the functions of the F16CMA under the provisions of Part 1 of the Competition Act 1998 (other than sections 31D(1) to (6), 38(1) to (6) F17, 40B(1) to (4) and 51), so far as relating to—

(a)

agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act,

(b)

conduct of the kind mentioned in section 18(1) of that Act, F18or

F19(c)

transferred EU anti-trust commitments or transferred EU anti-trust directions (as defined in section 40ZA of that Act),

which relate to the supply of services relating to railways.

F20(3ZA)

In F21subsections (2A) and (3) above “services relating to railways” means—

(a)

railway services;

(b)

the provision or maintenance of rolling stock;

(c)

the development, maintenance or renewal of a network, station or light maintenance depot; and

(d)

the development, provision or maintenance of information systems designed wholly or mainly for facilitating the provision of railway services.

(3ZB)

The Secretary of State may by order amend subsection (3ZA) above; and an order under this subsection shall not be made unless a draft of the statutory instrument containing it has been laid before and approved by a resolution of each House of Parliament.

(3A)

So far as necessary for the purposes of, or in connection with, the provisions of subsection (3) above, references in Part I of the Competition Act 1998 to F22the CMA are to be read as including a reference to F2the Office of Rail and Road (F23except in sections 31D(1) to (6), 38(1) to (6) F17, 40B(1) to (4) , 51, 52(6) and (8) and 54 of that Act and in any other provision of that Act where the context otherwise requires).

F24C3(4)

Before the F16CMA or F2the Office of Rail and Road first exercises in relation to any matter functions which are exercisable concurrently by virtue of subsection (2) above, that person shall consult the other.

(4A)

Neither the F25CMA nor F2the Office of Rail and Road shall exercise in relation to any matter functions which are exercisable concurrently by virtue of subsection (2) above if functions which are so exercisable have been exercised in relation to that matter by the other.

(5)

It shall be the duty of F2the Office of Rail and Road, for the purpose of assisting F26a CMA group in carrying out an investigation on a reference falling within subsection (6) below, to give to the F27group —

(a)

any information which is in F28its possession and which relates to matters falling within the scope of the investigation and—

(i)

is requested by the F27group for that purpose; or

(ii)

is information which in F28its opinion it would be appropriate for that purpose to give to the F27group without any such request; and

(b)

any other assistance which the F27group may require and which it is within F28its power to give, in relation to any such matters;

and the F27group shall, for the purposes of carrying out any such investigation, take into account any information given to them for that purpose under this subsection.

(6)

The references which fall within this subsection are—

(a)

any F29market investigation reference made by F2the Office of Rail and Road (under section 131 of the Enterprise Act 2002) by virtue of subsection (2) F30or (3) above; and

(b)

any reference made to the F31CMA by the Secretary of State under section 11 of the 1980 Act, if the person who is the subject of the reference is—

(i)

F32. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ii)

a publicly owned railway company which supplies network services or station services.

F33(6A)

In subsection (5) “CMA group” has the same meaning as in Schedule 4 to the Enterprise and Regulatory Reform Act 2013.

(7)

A copy of any report of the F34CMA F35under section 136 or 142 of the Enterprise Act 2002 which relates to F36the supply of services relating to railways may be transmitted by the F37CMA to F2the Office of Rail and Road, notwithstanding that the reference F38. . . could not have been made by F2the Office of Rail and Road.

(8)

F39If any question arises as to whether subsection (2) or (3) above applies to any particular case , that question shall be referred to and determined by the Secretary of State; and no objection shall be taken to anything done under—

(a)

F40Part 4 of the Enterprise Act 2002, or

F41(b)

Part I of the Competition Act 1998 (F42other than sections 31D(1) to (6), 38(1) to (6) F43, 40B(1) to (4) and 51),

by or in relation to F2the Office of Rail and Road on the ground that it should have been done by or in relation to F44the CMA .

F45(9)

Section 117 of the Enterprise Act 2002 (offences of supplying false or misleading information) as applied by section 180 of that Act shall have effect so far as relating to functions exercisable by F2the Office of Rail and Road by virtue of subsection (2) above as if the references in section 117(1)(a) and (2) to the F46CMA included references to F2the Office of Rail and Road.

F47(10)

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