Part 5Competition in communications markets

Chapter 1Functions of OFCOM under competition legislation

370OFCOM’s functions under Part 4 of the Enterprise Act 2002

(1)

The functions to which subsection (2) applies shall be concurrent functions of OFCOM and the F1Competition and Markets Authority (referred to in this Part as “the CMA”) .

(2)

This subsection applies to the functions of the F2CMA under Part 4 of the Enterprise Act 2002 (market investigations) (other than sections 166 F3, 171 and 174E ) so far as F4those 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 commercial activities connected with communications matters.

(3)

So far as necessary for the purposes of, or in connection with, subsections F5(1) and (2)—

(a)

references in Part 4 of the Enterprise Act 2002 to the F6CMA (including references in provisions of that Act applied by that Part) shall be construed as including references to OFCOM F7(except in sections 166, 171 and 174E and where the context otherwise requires);

(b)

references in that Part to the CMA carrying out functions under section 5 of the Enterprise Act 2002 are to be construed as including references to OFCOM exercising powers under section 1(3) of this Act to obtain, compile and keep under review information about matters relating to the carrying out of its functions.

F8(3A)

Section 130A of the Enterprise Act 2002 is to have effect in its application in relation to OFCOM by virtue of subsections (1) and (2)—

(a)

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

“(1)

Where the Office of Communications—

(a)

is proposing to fulfil its duties under section 3(1) of the Communications Act 2003 by obtaining, compiling and keeping under review information 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,

the Office of Communications 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 “commercial activities connected with communications matters (within the meaning given by section 369(1) of the Communications Act 2003)”.

(4)

In F9subsections (2) and (3A) the references to activities connected with communications matters, so far as F10they are references to activities connected with any apparatus falling within paragraph (d) of section 369(1), F11include a reference to—

(a)

the supply and export of any such apparatus; and

(b)

the production or acquisition of any such apparatus for supply or export.

(5)

Before the F12CMA or OFCOM first exercises in relation to any matter functions which are exercisable concurrently by virtue of this section, that person shall consult the other.

(6)

Neither the F12CMA nor OFCOM shall exercise in relation to any matter functions which are exercisable concurrently by virtue of this section if functions which are so exercisable have been exercised in relation to that matter by the other.

(7)

It shall be the duty of OFCOM, for the purpose of assisting F13a CMA group in carrying out an investigation on a F14market investigation reference made by OFCOM (under section 131 of the Enterprise Act 2002) by virtue of subsection (1), to give to the F15group —

(a)

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

(i)

is requested by the F15group for that purpose, or

(ii)

is information which, in OFCOM’s opinion, it would be appropriate for that purpose to give to the F15group without any such request;

and

(b)

any other assistance which the F15group may require, and which it is within OFCOM’s power to give, in relation to any such matters,

and the F15group , for the purposes of carrying out any such investigation, shall take into account any information given to it for that purpose under this subsection.

F16(7A)

In subsection (7) “CMA group” has the same meaning as in Schedule 4 to the Enterprise and Regulatory Reform Act 2013.

(8)

If any question arises as to whether, by virtue of this section, any functions fall to be, or are capable of being, carried out by OFCOM in relation to any particular case, that question shall be referred to and determined by the Secretary of State.

(9)

No objection shall be taken to anything done under Part 4 of the Enterprise Act 2002 (c. 40) by or in relation to OFCOM on the ground that it should have been done by or in relation to the F17CMA .

(10)

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 OFCOM by virtue of this section as if the references in section 117(1)(a) and (2) to the F17CMA included references to OFCOM.

(11)

Subject to subsection (12), F18section 3 of this Act (general duties) and section 29 of the Postal Services Act 2011 (duty to secure provision of universal postal service) do not apply in relation to anything done by OFCOM in the carrying out of their functions by virtue of this section.

(12)

In the carrying out of any functions by virtue of this section OFCOM may nevertheless have regard to any of the matters in respect of which a duty is imposed by F19section 3(1) to (4) of this Act or section 29 of the Postal Services Act 2011 if it is a matter to which the F20CMA is entitled to have regard in the carrying out of those functions.