10APower to vary etc retained block exemption regulations

1

The Secretary of State may by regulations vary or revoke a retained block exemption regulation.

2

In exercising the power under subsection (1), the Secretary of State must have regard to the conditions specified in section 9(1) for exemption from the Chapter 1 prohibition.

3

If, in the opinion of the CMA, it is appropriate to vary or revoke a retained block exemption regulation, the CMA may make a recommendation to that effect to the Secretary of State.

4

Before making a recommendation under subsection (3), the CMA must—

a

publish details of its proposed recommendation in such a way as it thinks most suitable for bringing it to the attention of those likely to be affected; and

b

consider any representations about it which are made to it.

5

Before exercising the power to vary or revoke a retained block exemption regulation (in a case where there has been no recommendation under subsection (3)), the Secretary of State must—

a

inform the CMA of the proposed variation or revocation; and

b

take into account any comments made by the CMA.

Transferred EU anti-trust commitments and transferred EU anti-trust directions

40ZAInterpretation

1

In this section and in sections 40ZB and 40ZD “transferred EU anti-trust commitments” means EU anti-trust commitments—

a

which are the subject of an Article 95(2) commitments transfer decision (and, where those commitments are modified by, or as contemplated by, that decision, or by a later Article 95(2) commitments transfer decision, means those commitments as so modified), and

b

which have not been wholly waived or substituted by the European Commission.

2

In this section—

• “Article 95(2) commitments transfer decision” means an instrument issued by the European Commission in accordance with Article 95(2) of the EU withdrawal agreement transferring responsibility for the monitoring and enforcement of EU anti-trust commitments to the CMA;

• “EU anti-trust commitments” means commitments contained, pursuant to Article 9(1) of Regulation 1/2003, in a decision adopted by the European Commission under that Regulation.

3

In this section and in sections 40ZC and 40ZD a “transferred EU anti-trust direction” means an EU anti-trust direction—

a

which is the subject of an Article 95(2) direction transfer decision (and, where that direction is modified by, or as contemplated by, that decision, or by a later Article 95(2) direction transfer decision, means that direction as so modified), and

b

which has not been wholly revoked by the European Commission.

4

In this section—

• “Article 95(2) direction transfer decision” means an instrument issued by the European Commission in accordance with Article 95(2) of the EU withdrawal agreement transferring responsibility for the monitoring and enforcement of an EU anti-trust direction to the CMA;

• “EU anti-trust direction” means a direction given pursuant to Article 7(1) of Regulation 1/2003 in a decision adopted by the European Commission under that Regulation;

• “Regulation 1/2003” means Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty.

5

So far as the context permits or requires, transferred EU anti-trust commitments and transferred EU anti-trust directions are to be treated for the purposes of this section and sections 40ZB to 40ZD as if—

a

any reference to the area of the European Union or of the European Economic Area included the United Kingdom;

b

any reference to the internal market included the United Kingdom;

c

any reference to a member State included the United Kingdom;

d

any reference to a party to the EEA agreement included the United Kingdom.

6

Subsection (5) is subject to any different provision made by the Article 95(2) commitments transfer decision or Article 95(2) direction transfer decision in question.

40ZBTransferred EU anti-trust commitments

1

The CMA has the function of monitoring compliance with transferred EU anti-trust commitments.

2

If a person who is bound by transferred EU anti-trust commitments fails, without reasonable excuse, to adhere to those commitments, the CMA may apply to the court for an order—

a

requiring the defaulter to make good the default within a time specified in the order; or

b

if any of the transferred EU anti-trust commitments relate to anything to be done in the management or administration of an undertaking, requiring the undertaking or any of its officers to do it.

3

An order of the court under subsection (2) 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.

4

In the application of subsection (3) to Scotland, the reference to “costs” is to be read as a reference to “expenses”.

5

In this section, “transferred EU anti-trust commitments” has the meaning given by section 40ZA(1).

40ZCTransferred EU anti-trust directions

1

The CMA has the function of monitoring compliance with transferred EU anti-trust directions.

2

If a person fails, without reasonable excuse, to comply with a transferred EU anti-trust direction, the CMA may apply to the court for an order—

a

requiring the defaulter to make good the default within a time specified in the order; or

b

if the transferred EU anti-trust 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.

3

An order of the court under subsection (2) 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.

4

In the application of subsection (3) to Scotland, the reference to “costs” is to be read as a reference to “expenses”.

5

In this section, “transferred EU anti-trust direction” has the meaning given by section 40ZA(3).

40ZDInformation relating to transferred EU anti-trust commitments and transferred EU anti-trust directions

1

The CMA may require any person to produce to the CMA a specified document, or to provide the CMA with specified information, for the purposes of assisting the CMA—

a

to monitor compliance with transferred EU anti-trust commitments, or

b

to decide whether to make an application under section 40ZB(2) in respect of those transferred EU anti-trust commitments.

2

The CMA may require any person to produce to the CMA a specified document, or to provide the CMA with specified information, for the purposes of assisting the CMA—

a

to monitor compliance with a transferred EU anti-trust direction, or

b

to decide whether to make an application under section 40ZC(2) in respect of a transferred EU anti-trust direction.

3

The powers conferred by subsections (1) and (2) are to be exercised by a notice in writing which indicates the subject matter and purpose of the demand (including identifying the transferred EU anti-trust commitments or transferred EU anti-trust direction in question).

4

The CMA may also specify in the notice—

a

the time and place at which any document is to be produced or any information is to be provided;

b

the manner and form in which it is to be produced or provided.

5

The power under this section to require a person to produce a document includes power—

a

if the document is produced—

i

to take copies of it or extracts from it;

ii

to require that person, or any person who is a present or past officer of, or is or was at any time employed by, that person, to provide an explanation of the document;

b

if the document is not produced, to require that person to state, to the best of their knowledge and belief, where it is.

6

In this section—

• “specified” means—

  1. a

     specified, or described, in the notice under subsection (3), or

  2. b

     falling within a category which is specified, or described, in that notice;

• “transferred EU anti-trust commitments” has the meaning given by section 40ZA(1);

• “transferred EU anti-trust direction” has the meaning given by section 40ZA(3).

“infringement decision” means a decision of the CMA that the Chapter I prohibition or the Chapter II prohibition has been infringed,

60ACertain principles etc to be considered or applied from F6IP completion day

1

This section applies when one of the following persons determines a question arising under this Part in relation to competition within the United Kingdom—

a

a court or tribunal;

b

the CMA;

c

a person acting on behalf of the CMA in connection with a matter arising under this Part.

2

The person must act (so far as is compatible with the provisions of this Part) with a view to securing that there is no inconsistency between—

a

the principles that it applies, and the decision that it reaches, in determining the question, and

b

the principles laid down by the Treaty on the Functioning of the European Union and the European Court before F6IP completion day, and any relevant decision made by that Court before F6IP completion day, so far as applicable immediately before F6IP completion day in determining any corresponding question arising in EU law,

subject to subsections (4) to (7).

3

The person must, in addition, have regard to any relevant decision or statement of the European Commission made before F6IP completion day and not withdrawn.

4

Subsection (2) does not require the person to secure that there is no inconsistency with a principle or decision referred to in subsection (2)(b) so far as the principle or decision is excluded from the law of England and Wales, Scotland and Northern Ireland on or after F6IP completion day.

5

For the purposes of subsection (4), a principle or decision is to be treated as not excluded from the law of England and Wales, Scotland and Northern Ireland if it is excluded only by virtue of an exclusion or revocation in the Competition (Amendment etc.) (EU Exit) Regulations 2019.

6

Subsection (2) does not apply so far as the person is bound by a principle laid down by, or a decision of, a court or tribunal in England and Wales, Scotland or Northern Ireland that requires the person to act otherwise.

7

Subsection (2) does not apply if the person thinks that it is appropriate to act otherwise in the light of one or more of the following—

a

differences between the provisions of this Part under consideration and the corresponding provisions of EU law as those provisions of EU law had effect immediately before F6IP completion day;

b

differences between markets in the United Kingdom and markets in the European Union;

c

developments in forms of economic activity since the time when the principle or decision referred to in subsection (2)(b) was laid down or made;

d

generally accepted principles of competition analysis or the generally accepted application of such principles;

e

a principle laid down, or decision made, by the European Court on or after F6IP completion day;

f

the particular circumstances under consideration.

8

In subsection (2)(b), the reference to principles laid down before F6IP completion day is a reference to such principles as they have effect in EU law immediately before F6IP completion day, disregarding the effect of principles laid down, and decisions made, by the European Court on or after F6IP completion day.

9

In this section, references to a decision of the European Court or the European Commission include a decision as to—

a

the interpretation of a provision of EU law;

b

the civil liability of an undertaking for harm caused by its infringement of EU law.

“infringement issue” means any question relating to whether or not an infringement of the Chapter I prohibition or the Chapter II prohibition has been or is being committed;

Transferred EU merger commitments

95ATransferred EU merger commitments

1

The CMA must—

a

monitor compliance with transferred EU merger commitments; and

b

take such action (if any) under subsection (3) or section 95B as it considers appropriate.

2

Any person to whom transferred EU merger commitments relate has a duty to comply with those commitments.

3

Compliance with transferred EU merger commitments is enforceable by civil proceedings brought by the CMA for an injunction or for interdict or for any other appropriate relief or remedy.

4

The rights of the CMA under subsection (3) are not affected by any provisions of transferred EU merger commitments which provide for disputes relating to compliance with the commitments to be resolved by arbitration.

5

The CMA must ensure that the provisions of transferred EU merger commitments are entered and kept up to date in the register referred to in section 91.

6

In this Part “transferred EU merger commitments” means EU merger commitments—

a

which are the subject of an Article 95(2) transfer decision (and, where those commitments are modified by, or as contemplated by, that decision or by a later Article 95(2) transfer decision, means those commitments as so modified); and

b

which have not been waived or substituted by the European Commission.

7

In this section—

• “Article 95(2) transfer decision” means an instrument issued by the European Commission in accordance with Article 95(2) of the EU withdrawal agreement transferring responsibility for the monitoring and enforcement of EU merger commitments to the CMA;

• “EU merger commitments” means commitments attached to a decision adopted by the European Commission under Article 6(1)(b) and (2) or 8(2) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings.

8

So far as the context permits or requires, transferred EU merger commitments are to be treated for the purposes of this Part as if—

a

any reference to the area of the European Union or of the European Economic Area included the United Kingdom;

b

any reference to the internal market included the United Kingdom;

c

any reference to a member State included the United Kingdom;

d

any reference to a party to the EEA agreement included the United Kingdom.

9

Subsection (8) is subject to any different provision made by the Article 95(2) transfer decision in question.

95BPower of directions in connection with transferred EU merger commitments

1

The CMA may give directions falling within subsection (2) to—

a

a person specified in the directions; or

b

the holder for the time being of an office so specified in any body of persons corporate or unincorporate.

2

Directions fall within this subsection if they are directions—

a

to take such action as may be specified or described in the directions for the purpose of carrying out, or ensuring compliance with, transferred EU merger commitments; or

b

to do, or refrain from doing, anything so specified or described which the person is required by transferred EU merger commitments to do or refrain from doing.

3

The CMA may vary or revoke any directions so given.

4

Directions under this section may extend to a person’s conduct outside the United Kingdom if (and only if) the person is—

a

a person bound by the transferred EU merger commitments concerned;

b

a United Kingdom national;

c

a body incorporated under the law of the United Kingdom or of any part of the United Kingdom; or

d

a person carrying on business in the United Kingdom.

5

The court may by order require any person who has failed to comply with directions given under this section to comply with them, or otherwise remedy the failure, within such time as may be specified in the order.

6

Where the directions related to anything done in the management or administration of a body of persons corporate or unincorporate, the court may by order require the body of persons concerned or any officer of it to comply with the directions, or otherwise remedy the failure to comply with them, within such time as may be specified in the order.

7

An order under subsection (5) or (6) may only be made on the application of the CMA.

8

An order under subsection (5) or (6) may provide for all the costs or expenses of, or incidental to, the application for the order to be met by any person in default or by any officers of a body of persons corporate or unincorporate who are responsible for its default.

9

In this section “the court” means—

a

in relation to England and Wales or Northern Ireland, the High Court; and

b

in relation to Scotland, the Court of Session.

109ATransferred EU merger commitments: witnesses, documents etc

Any power exercisable by the CMA under section 109 for “permitted purposes” (as mentioned in subsection (A1) of that section) is also exercisable by the CMA under that section for the purposes of assisting the CMA in carrying out any of its functions under or by virtue of section 95A(1) or 95B.

9

Where the section 109 power is exercised for the purposes of assisting the CMA in carrying out any of its functions under or by virtue of section 95A(1) or 95B (see section 109A), the relevant day is the day when the transferred EU merger commitments concerned are waived or substituted by the European Commission.