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

Action by the Secretary of State on an agreement

4.—(1) This paragraph applies where, following a preliminary investigation by the Director of an agreement, it appears to the Secretary of State —

(a) that there is or has been in existence an agreement, to which at least one of the parties is or was a qualifying undertaking, and

(b) that the United Kingdom has a duty under Article 88 to rule on the question whether or not the agreement is prohibited by Article 85.

(2) Where paragraph (1) applies, the Secretary of State may, if it appears to him that the agreement does not or did not fall within Article 85(1), decide to certify that, on the basis of the facts in his possession, there are no grounds for action on his part in respect of the agreement.

(3) Where paragraph (1) applies, the Secretary of State may, if it appears to him that the agreement falls within Article 85(1) or did so fall, but that the conditions for application of Article 85(3) are met or were met in respect of the agreement, declare the provisions of Article 85(1) inapplicable to the agreement.

(4) Where paragraph (1) applies and the Secretary of State has not made a decision under paragraph (2) or a declaration under paragraph (3), he may refer the agreement to the MMC for investigation and report.

(5) Where, following a preliminary investigation by the Director, it appears to the Secretary of State that there may be, or may have been, in existence an agreement to which at least one of the parties is or was a qualifying undertaking, and that, if so, the United Kingdom would have a duty to rule on the agreement under Article 88, the Secretary of State may refer the suspected agreement to the MMC for investigation and report.