C1C2C3C4C10C8C9C6C5C7C11C12C13 Part I Competition
Pt. 1 (except ss. 38(1)-(6), 51) amended (1.2.2001) by 2000 c. 38, ss. 86(1)(3), 89 (with ss. 105(2)(d)(5), 106); S.I. 2001/57, art. 3(1), Sch. 2 Pt. 1
Pt. 1 (except ss. 38(1)-(6), 51, 52(6) and (8) and 54) amended (1.2.2001) by 2000 c. 38, s. 86(4)(b)(5) (with ss. 105(2)(d)(5), 106); S.I. 2001/57, art. 3(1), Sch. 2 Pt. 1
Pt. 1 (except ss. 38(1)-(6), 51) amended (1.2.2001) by 2000 c. 38, s. 86(7)(b) (with ss. 105(2)(d)(5), 106); S.I. 2001/57, art. 3(1), Sch. 2 Pt. 1
Pt. 1 modified (25.7.2003 for specified purposes, 29.12.2003 in so far as not already in force) by Communications Act 2003 (c. 21), ss. 371(3), 411(2) (with Sch. 18); S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)); S.I. 2003/3142, art. 3(2) (with art. 11)
Pt. 1 certain functions made exercisable concurrently by 1998 c. 41, s. 67(3) (as substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 2 para. 6(2)(a))
Pt. 1 certain functions made exercisable concurrently by 1991 c. 56, s. 31(3) (as substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 2 para. 4(2)(a))
Pt. 1 certain functions made exercisable concurrently by S.I. 1992/231 (N.I. 1) art. 46(3) (as substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 2 para. 5(2)(a))
Pt. 1 certain functions made exercisable concurrently by 1986 c. 44, s. 36A(3) (as substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 2 para. 1(2)(a))
Pt. 1 restricted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), regs. 1(a), 9(2)
Pt. 1 certain functions made exercisable concurrently by 1989 c. 29, s. 43(3) (as substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 2 para. 3(2)(a))
Pt. 1 certain functions made exercisable concurrently by S.I. 1996/275 (N.I. 2), art. 23(3) (as substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 2 para. 9(2)(a))
Pt. 1 certain functions made exercisable concurrently (1.4.2007) by The Water and Sewerage Services (Northern Ireland) Order 2006 (S.I. 2006/3336), arts. 1(2), 29(3) (with arts. 8(8), 121(3), 307); S.R. 2007/194, art. 2(2), Sch. Pt. 2 (with Sch. 2)
Pt. 1 modified (1.4.2007) by The Water and Sewerage Services (Northern Ireland) Order 2006 (S.I. 2006/3336), arts. 1(2), 29(5) (with arts. 8(8), 121(3), 307); S.R. 2007/194, art. 2(2), Sch. Pt. 2 (with Sch. 2)
Chapter III Investigation and Enforcement
Enforcement
32 Directions in relation to agreements.
1
2
3
A direction under this section may, in particular, include provision—
a
requiring the parties to the agreement to modify the agreement; or
b
requiring them to terminate the agreement.
4
A direction under this section must be given in writing.
33 Directions in relation to conduct.
1
2
3
A direction under this section may, in particular, include provision—
a
requiring the person concerned to modify the conduct in question; or
b
requiring him to cease that conduct.
4
A direction under this section must be given in writing.
34 Enforcement of directions.
1
If a person fails, without reasonable excuse, to comply with a direction under section 32 or 33, the F5OFT may apply to the court for an order—
a
requiring the defaulter to make good his default within a time specified in the order; or
b
if the direction related to anything to be done in the management or administration of an undertaking, requiring the undertaking or any of its officers to do it.
2
An order of the court under subsection (1) may provide for all of the costs of, or incidental to, the application for the order to be borne by—
a
the person in default; or
b
any officer of an undertaking who is responsible for the default.
3
In the application of subsection (2) to Scotland, the reference to “costs” is to be read as a reference to “expenses”.
35 Interim measures.
F221
Subject to subsections (8) and (9), this section applies if the OFT has begun an investigation under section 25 and not completed it (but only applies so long as the OFT has power under section 25 to conduct that investigation).
2
If the F6OFT considers that it is necessary for F6it to act under this section as a matter of urgency for the purpose—
a
of preventing serious, irreparable damage to a particular person or category of person, or
b
of protecting the public interest,
3
Before giving a direction under this section, the F6OFT must—
a
give written notice to the person (or persons) to whom F6it proposes to give the direction; and
b
give that person (or each of them) an opportunity to make representations.
4
F235
A direction given under this section may if the circumstances permit be replaced by—
a
a direction under section 32 or (as appropriate) section 33, or
b
commitments accepted under section 31A,
but, subject to that, has effect while this section applies.
6
In the F24cases mentioned in section 25(2), (3), (6) and (7), sections 32(3) and 34 also apply to directions given under this section.
7
In the F25cases mentioned in section 25(4) and (5), sections 33(3) and 34 also apply to directions given under this section.
F218
In the case of an investigation conducted by virtue of section 25(2) or (6), this section does not apply if a person has produced evidence to the OFT in connection with the investigation that satisfies it on the balance of probabilities that, in the event of it reaching the basic infringement conclusion, it would also reach the conclusion that the suspected agreement is exempt from the Chapter I prohibition as a result of section 9(1); and in this subsection “the basic infringement conclusion” is the conclusion that there is an agreement which—
a
may affect trade within the United Kingdom, and
b
has as its object or effect the prevention, restriction or distortion of competition within the United Kingdom.
9
In the case of an investigation conducted by virtue of section 25(3) or (7), this section does not apply if a person has produced evidence to the OFT in connection with the investigation that satisfies it on the balance of probabilities that, in the event of it reaching the basic infringement conclusion, it would also reach the conclusion that the suspected agreement is an agreement to which the prohibition in Article 81(1) is inapplicable because the agreement satisfies the conditions in Article 81(3); and in this subsection “the basic infringement conclusion” is the conclusion that there is an agreement which—
a
may affect trade between Member States, and
b
has as its object or effect the prevention, restriction or distortion of competition within the Community.
36F26Penalties.
1
2
3
4
5
6
Notice of a penalty under this section must—
a
be in writing; and
b
specify the date before which the penalty is required to be paid.
7
The date specified must not be earlier than the end of the period within which an appeal against the notice may be brought under section 46.
8
No penalty fixed by the F7OFT under this section may exceed 10% of the turnover of the undertaking (determined in accordance with such provisions as may be specified in an order made by the Secretary of State).
9
Any sums received by the F7OFT under this section are to be paid into the Consolidated Fund.
37 Recovery of penalties.
1
If the specified date in a penalty notice has passed and—
a
the period during which an appeal against the imposition, or amount, of the penalty may be made has expired without an appeal having been made, or
b
such an appeal has been made and determined,
2
In this section—
“penalty notice” means a notice given under section 36; and
“specified date” means the date specified in the penalty notice.
I138 The appropriate level of a penalty.
1
The F11OFT must prepare and publish guidance as to the appropriate amount of any penalty under this Part.
F311A
The guidance must include provision about the circumstances in which, in determining a penalty under this Part, the OFT may take into account effects in another Member State of the agreement or conduct concerned.
2
The F11OFT may at any time alter the guidance.
3
If the guidance is altered, the F11OFT must publish it as altered.
4
No guidance is to be published under this section without the approval of the Secretary of State.
5
6
7
If the proposed guidance or alteration relates to a matter in respect of which a regulator exercises concurrent jurisdiction, those consulted must include that regulator.
8
When setting the amount of a penalty under this Part, the F11OFT must have regard to the guidance for the time being in force under this section.
9
If a penalty or a fine has been imposed by the Commission, or by a court or other body in another Member State, in respect of an agreement or conduct, the F11OFT, an appeal tribunal or the appropriate court must take that penalty or fine into account when setting the amount of a penalty under this Part in relation to that agreement or conduct.
10
In subsection (9) “the appropriate court” means—
a
in relation to England and Wales, the Court of Appeal;
b
in relation to Scotland, the Court of Session;
c
in relation to Northern Ireland, the Court of Appeal in Northern Ireland;
d
the House of Lords.
39F32Limited immunity in relation to the Chapter I prohibition.
1
In this section “small agreement” means an agreement—
a
which falls within a category prescribed for the purposes of this section; but
b
is not a price fixing agreement.
2
The criteria by reference to which a category of agreement is prescribed may, in particular, include—
a
the combined turnover of the parties to the agreement (determined in accordance with prescribed provisions);
b
the share of the market affected by the agreement (determined in that way).
3
4
5
6
A decision under subsection (4) takes effect on such date (“the withdrawal date”) as may be specified in the decision.
7
The withdrawal date must be a date after the date on which the decision is made.
8
In determining the withdrawal date, the F12OFT must have regard to the amount of time which the parties are likely to require in order to secure that there is no further infringement of the Chapter I prohibition with respect to the agreement.
9
In subsection (1) “price fixing agreement” means an agreement which has as its object or effect, or one of its objects or effects, restricting the freedom of a party to the agreement to determine the price to be charged (otherwise than as between that party and another party to the agreement) for the product, service or other matter to which the agreement relates.
40 Limited immunity in relation to the Chapter II prohibition.
1
In this section “conduct of minor significance” means conduct which falls within a category prescribed for the purposes of this section.
2
The criteria by reference to which a category is prescribed may, in particular, include—
a
the turnover of the person whose conduct it is (determined in accordance with prescribed provisions);
b
the share of the market affected by the conduct (determined in that way).
3
4
5
6
A decision under subsection (4) takes effect on such date (“the withdrawal date”) as may be specified in the decision.
7
The withdrawal date must be a date after the date on which the decision is made.
8
In determining the withdrawal date, the F13OFT must have regard to the amount of time which the person or persons affected are likely to require in order to secure that there is no further infringement of the Chapter II prohibition.
41 Agreements notified to the Commission.
F351
This section applies if a party to an agreement which may infringe the Chapter I prohibition has notified the agreement to the Commission for a decision as to whether an exemption will be granted under Article 85 with respect to the agreement.
2
A penalty may not be required to be paid under this Part in respect of any infringement of the Chapter I prohibition after notification but before the Commission determines the matter.
3
If the Commission withdraws the benefit of provisional immunity from penalties with respect to the agreement, subsection (2) ceases to apply as from the date on which that benefit is withdrawn.
4
The fact that an agreement has been notified to the Commission does not prevent the F16OFT from investigating it under this Part.
5
In this section “provisional immunity from penalties” has such meaning as may be prescribed.
Pt. 1: certain functions made exercisable concurrently (26.11.1998 for certain purposes and prosp. otherwise) by 1984 c. 12, s. 50(3) (as substituted by 1998 c. 41, s. 66(5), Sch. 10 Pt. II para. 2(6) (with s. 73); S.I. 1998/2750, art. 2)