The EC Competition Law (Articles 88 and 89) Enforcement Regulations 1996

Powers of Secretary of State to make Orders

21.—(1) Where —

(a) paragraph (2) applies, or

(b) pursuant to Article 89(2), the Commission has taken a reasoned decision relating to an infringement of Article 85 and has authorised the United Kingdom to take measures needed to remedy the situation;

the Secretary of State may by order made by statutory instrument exercise such one or more of the powers specified in Parts I and II of Schedule 8(1) to the 1973 Act as he considers it requisite to exercise for the purpose of terminating or preventing the recurrence of the infringement of Article 85 concerned or for the purpose of enabling him to make a declaration under regulation 19 or a renewal of such a declaration; and those powers may be so exercised to such extent and in such manner as the Secretary of State considers requisite for that purpose.

(2) This paragraph applies where —

(a) it appears to the Secretary of State that the United Kingdom has a duty under Article 88 to rule on whether or not an agreement which is the subject of a report of the MMC on a reference under regulation 4 is prohibited under Article 85(1), and

(b) the report includes the conclusions specified in regulation 10(3) and the Secretary of State has not declared Article 85(1) inapplicable to the agreement.

(3) Where —

(a) the Secretary of State has received a report of the MMC on a reference under regulation 5(3) which concludes that there is or has been an infringement of Article 86 by one or more undertakings at least one of which is a qualifying undertaking and it appears to the Secretary of State that the United Kingdom has a duty under Article 88 to rule on whether or not that infringement has occurred; or

(b) pursuant to Article 89(2), the Commission has taken a reasoned decision under Article 89(2) relating to an infringement of Article 86 and has authorised the United Kingdom to take measures needed to remedy the situation;

the Secretary of State may by order made by statutory instrument exercise any one or more of the powers specified in paragraph (4) for the purpose of terminating or preventing the recurrence of the infringement of Article 86 concerned.

(4) The powers which may be exercised under paragraph (3) are —

(a) the power to prohibit a person named in the order from carrying on the practice constituting the infringement of Article 86 specified in the report of the MMC or decision of the Commission or from carrying on any other practice which is similar in form and effect to that practice; and

(b) such one or more of the powers specified in Part I or II of Schedule 8 to the 1973 Act as the Secretary of State considers it requisite to exercise for the purpose mentioned in paragraph (3);

and those powers may be so exercised to such extent and in such manner as the Secretary of State considers requisite for the purpose mentioned in paragraph (3).

(5) In determining whether, or to what extent or in what manner, to exercise any of the powers under this regulation the Secretary of State shall have regard to any recommendations included in the report of the MMC.

(6) For the purpose of this regulation and of regulation 14(6), Schedule 8 to the 1973 Act shall be construed as if —

(a) an order under section 56 were an order under these Regulations;

(b) paragraph 3 were omitted,

(c) references to the appropriate Minister were references to the Secretary of State.

(7) It shall be the duty of the Director to keep under review the action (if any) taken in compliance with an order made under regulation 14(6) or under this regulation, and from time to time to consider whether, by reason of any change of circumstances, the order should be varied or revoked or should be superseded by a new order, and —

(a) if it appears to him that the order has in any respect not been complied with, to consider whether any action (by way of proceedings in accordance with section 93 of the 1973 Act as applied by regulation 24 or otherwise) should be taken for the purpose of securing compliance with the order, and (where in his opinion it is appropriate to do so) to take such action himself or give advice to the Secretary of State or other person by whom such action might be taken; or

(b) if it appears to him that the order needs to be varied or revoked, or to be superseded by a new order, to give such advice to the Secretary of State as he may think proper in the circumstances.

(1)

Paragraphs 9A, 12A 12C of Part I of Schedule 8 were inserted by the Companies Act, (c40.), Schedule 20, paragraph 19.