Part IIInspections under Articles 20, 21 and 22(2)

62F1Power to enter business premises under a warrant: Article 20 inspections

(1)

A judge of the High Court F2shall issue a warrant if satisfied, on an application made to the High Court in accordance with rules of court by the F3OFT—

F4(a)

the Commission has ordered an Article 20 inspection;

(b)

the Article 20 inspection is being, or is likely to be, obstructed; and

(c)

the measures that would be authorised by the warrant are neither arbitrary nor excessive having regard to the subject matter of the Article 20 inspection.

(2)

F5An Article 20 inspection is being obstructed if—

(a)

F6a Commission official, exercising his power in accordance with F7Article 20(3) of the EC Competition Regulation, has attempted to enter F8any business premises but has been unable to do so; and

(b)

there are reasonable grounds for suspecting that there F9on any business premises are books or recordsF10 on the premises which the Commission official has power to examine.

(3)

F11An Article 20 inspection is also being obstructed if there are reasonable grounds for suspecting that there are F12on any business premises books or records F13on the premises—

(a)

the production of which has been required by F14a Commission official exercising his power in accordance with F15Article 20(3) of the EC Competition Regulation; and

(b)

which have not been produced as required.

(4)

F16An Article 20 inspection is likely to be obstructed if—

(a)

F17an official of the Commission (“the Commission official”) is authorised for the purpose of the investigation;

(b)

there are reasonable grounds for suspecting that there are F18on any business premises books or records F19on the premises which F20a Commission official has power to examine; and

(c)

there are also reasonable grounds for suspecting that, if the Commission official attempted to exercise his power to examine any of the books or records, they would not be produced but would be concealed, removed, tampered with or destroyed.

F21(5)

A warrant under this section shall authorise a named officer of the OFT and any other OFT officer, or Commission official, accompanying the named officer—

(a)

to enter any business premises specified in the warrant using such force as is reasonably necessary for the purpose;

(b)

to search for books and records which a Commission official has power to examine, using such force as is reasonably necessary for the purpose;

(c)

to take or obtain copies of or extracts from such books and records;

(d)

to seal the premises, any part of the premises or any books or records which a Commission official has power to seal, for the period and to the extent necessary for the inspection.

F22(5A)

A warrant under this section may authorise persons specified in the warrant to accompany the named officer who is executing it.

(6)

Any person entering any premises by virtue of a warrant under this section may take with him such equipment as appears to him to be necessary.

(7)

On leaving any premises entered by virtue of the warrant the named officer must, if the premises are unoccupied or the occupier is temporarily absent, leave them as effectively secured as he found them.

(8)

A warrant under this section continues in force until the end of the period of one month beginning with the day on which it is issued.

(9)

In the application of this section to Scotland, references to the High Court are to be read as references to the Court of Session.

F23(10)

In this section—

“business premises” means any premises of an undertaking or association of undertakings which a Commission official has under Article 20 of the EC Competition Regulation power to enter in the course of the Article 20 inspection;

“Commission official” means any of the persons authorised by the Commission to conduct the Article 20 inspection; and

“OFT officer” means any officer of the OFT whom the OFT has authorised in writing to accompany the named officer.

(11)

In subsection (10), the reference in the definition of “business premises” to Article 20 of the EC Competition Regulation does not include a reference to that Article as applied by Article 21 of that Regulation.