Legalize / United Kingdom / Public General Act

Enterprise Act 2002

Type Public General Act

Publication 2002-11-07

Last updated 2026-04-06

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(c) any possible variation or revocation by ... the Secretary of State of an enforcement order made by ... the Secretary of State;

(d) any possible enforcement undertaking to be accepted by ... the Secretary of State instead of an enforcement order or any possible enforcement order to be made by ... the Secretary of State instead of an enforcement undertaking; or

(e) the enforcement by virtue of section 167(6) and (7) of any enforcement undertaking or enforcement order.

(4) The CMA shall take such action as it considers appropriate in relation to—

(a) any possible variation or release by it of an undertaking accepted by it under section 154A;

(b) any possible new undertaking to be accepted by it under section 154A so as to supersede another undertaking given to it under that section;

(ba) any possible variation or release by it of an enforcement undertaking accepted by it;

(bb) any possible new enforcement undertaking to be accepted by it so as to supersede another enforcement undertaking given to it;

(bc) any possible variation or revocation by it of an enforcement order made by it;

(bd) any possible enforcement undertaking to be accepted by it instead of an enforcement order or any possible enforcement order to be made by it instead of an enforcement undertaking; or

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) In this Part—

“enforcement order” means an order made under section 158, 160 or 161; and

“enforcement undertaking” means an undertaking accepted under section 154A, 157 or 159.

Further role of OFT in relation to undertakings and orders: Part 4

163

(1) Subsections (2) and (3) apply where ... the Secretary of State ... is considering whether to accept undertakings under section 157 or 159.

(2) The Secretary of State may require the CMA to consult with such persons as the Secretary of State considers appropriate with a view to discovering whether they will offer undertakings which the Secretary of State would be prepared to accept under section 157 or (as the case may be) 159.

(3) The Secretary of State may require the CMA to report to the Secretary of State on the outcome of the CMA's consultations within such period as the Secretary of State may require.

(4) A report under subsection (3) shall, in particular, contain advice from the CMA as to whether any undertakings offered should be accepted by the Secretary of State under section 157 or (as the case may be) 159.

(5) The powers conferred on the Secretary of State by subsections (1) to (4) are without prejudice to the power of the Secretary of State to consult the persons concerned ....

(6) If asked by the Secretary of State for advice in relation to the taking of enforcement action (whether or not by way of undertakings) in a particular case, the CMA shall give such advice as it considers appropriate.

Supplementary

Enforcement undertakings and orders under this Part: general provisions

164

(1) The provision which may be contained in an enforcement undertaking is not limited to the provision which is permitted by Schedule 8.

(2) The following enactments in Part 3 shall apply in relation to enforcement orders under this Part as they apply in relation to enforcement orders under that Part—

(a) section 86(1) to (5) (enforcement orders: general provisions); and

(b) section 87 (power of directions conferred by enforcement order).

(3) An enforcement order under section 160 or 161 or any explanatory material accompanying the order shall state—

(a) the actions that the persons or description of persons to whom the order is addressed must do or (as the case may be) refrain from doing;

(b) the date on which the order comes into force;

(d) the section of this Part under which a review can be sought in relation to the order.

Procedural requirements for certain undertakings and orders: Part 4

165

Schedule 10 (procedural requirements for certain undertakings and orders), other than paragraph 9 of that Schedule, shall apply in relation to undertakings under section 159 or 161C and orders under section 160 , 161 or 161C as it applies in relation to undertakings under section 82 and orders under section 83 or 84.

Register of undertakings and orders: Part 4

166

(1) The CMA shall compile and maintain a register for the purposes of this Part.

(2) The register shall be kept in such form as the CMA considers appropriate.

(3) The CMA shall ensure that the following matters are entered in the register—

(a) the provisions of any enforcement undertaking accepted by virtue of this Part ...;

(b) the provisions of any enforcement order made by virtue of this Part ...; and

(4) The duty in subsection (3) does not extend to anything of which the CMA is unaware.

(5) The ... Secretary of State and any relevant sectoral regulator shall inform the CMA of any matters which are to be included in the register by virtue of subsection (3) and which relate to enforcement undertakings accepted by them or enforcement orders made by them.

(6) The CMA shall ensure that the contents of the register are available to the public—

(a) during (as a minimum) such hours as may be specified in an order made by the Secretary of State; and

(b) subject to such reasonable fees (if any) as the CMA may determine.

(7) If requested by any person to do so and subject to such reasonable fees (if any) as the CMA may determine, the CMA shall supply the person concerned with a copy (certified to be true) of the register or of an extract from it.

Rights to enforce undertakings and orders under this Part

167

(1) This section applies to

(a) any enforcement undertaking or enforcement order;

(b) any undertaking accepted, or order made, under section 161C.

(2) Any person to whom such an undertaking or order relates shall have a duty to comply with it.

(3) The duty shall be owed to any person who may be affected by a contravention of the undertaking or (as the case may be) order.

(4) Any breach of the duty which causes such a person to sustain loss or damage shall be actionable by him.

(5) In any proceedings brought under subsection (4) against a person to whom an undertaking or order to which this section applies relates it shall be a defence for that person to show that he took all reasonable steps and exercised all due diligence to avoid contravening the undertaking or (as the case may be) order.

(6) Compliance with an undertaking or order to which this section applies shall also be enforceable by civil proceedings brought by the CMA for an injunction or for interdict or for any other appropriate relief or remedy.

(7) Compliance with an undertaking accepted by the Secretary of State under section 157 or 159, or an order made by the Secretary of State under section 158, 160 or 161, shall also be enforceable by civil proceedings brought by the Secretary of State for an injunction or for interdict or for any other appropriate relief or remedy.

(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9) Subsections (6) and (7) shall not prejudice any right that a person may have by virtue of subsection (4) to bring civil proceedings for contravention or apprehended contravention of an undertaking or order to which this section applies.

(10) In deciding whether and, if so, how to proceed under this section, the CMA must have regard to the statement of policy which was most recently published by it under section 167C at the time of the failure to comply with the undertaking or (as the case may be) order.

Chapter 4 — Supplementary

Regulated markets

168

(1) Subsection (2) applies where the CMA or the Secretary of State is considering for the purposes of this Part whether relevant action would be reasonable and practicable for the purpose of remedying, mitigating or preventing an adverse effect on competition or any detrimental effect on customers so far as resulting from such an effect.

(2) The CMA or (as the case may be) the Secretary of State shall, in deciding whether such action would be reasonable and practicable, have regard to the relevant statutory functions of the sectoral regulator concerned.

(3) In this section “relevant action” means—

(a) modifying the conditions of a licence granted under section 7 of the Telecommunications Act 1984 (c. 12);

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) modifying the conditions of a licence granted under section 7 or 7A, 7A , 7AA, 7AB or 7AC of the Gas Act 1986 (c. 44);

(d) modifying the conditions of a licence granted under section 6 of the Electricity Act 1989 (c. 29);

(e) modifying networking arrangements (within the meaning given by section 290 of the Communications Act 2003);

(f) modifying the conditions of a company’s appointment under Chapter 1 of Part 2 of the Water Industry Act 1991 (c. 56);

(ff) modifying the conditions of a licence granted under Chapter 1A of Part 2 of the Act of 1991 or modifying the terms and conditions of an agreement under section 66D or 117E of that Act;

(g) modifying the conditions of a licence granted under article 10 of the Electricity (Northern Ireland) Order 1992 (S.I. 1992/231 (N.I. 1));

(h) modifying the conditions of a licence granted under section 8 of the Railways Act 1993 (c. 43);

(hh) modifying the conditions of a SNRP issued pursuant to the Railways Infrastructure (Access, Management and Licensing of Railway Undertakings) Regulations (Northern Ireland) 2005;

(i) modifying an access agreement (within the meaning given by section 83(1) of the Act of 1993) or a franchise agreement (within the meaning given by section 23(3) of that Act);

(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(k) modifying the conditions of a licence granted under article 8 of the Gas (Northern Ireland) Order 1996 (S.I. 1996/275 (N.I. 2));

(l) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(m) modifying the conditions of a licence granted under section 5 of the Transport Act 2000 (c. 38);

(n) modifying the conditions of a company's appointment under Chapter I of Part III of the Water and Sewerage Services (Northern Ireland) Order 2006;

(o) modifying regulatory conditions imposed under Part 3 of the Postal Services Act 2011;

(p) modifying the conditions of a licence issued under section 87 of the Health and Social Care Act 2012;

(q) modifying the conditions of a licence granted under Chapter 1 of Part 1 of the Civil Aviation Act 2012; or

(r) modifying the conditions of a licence granted under section 7 of the Energy Act 2023.

(4) In this section “relevant statutory functions” means—

(a) in relation to any licence granted under section 7 of the Telecommunications Act 1984, the duties and obligations of the Director General of Telecommunications imposed on him by or in pursuance of any enactment or other provision mentioned in section 7(5)(a) of that Act;

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) in relation to any licence granted under section 7 or 7A, 7A , 7AA, 7AB or 7AC of the Gas Act 1986 (c. 44), the objectives and duties of the Gas and Electricity Markets Authority under section 4AA and 4AB(2) of that Act;

(d) in relation to any licence granted under section 6 of the Electricity Act 1989 (c. 29), the objectives and duties of the Gas and Electricity Markets Authority under section 3A and 3B(2) of that Act;

(e) in relation to any networking arrangements (within the meaning given by section 290 of the Communications Act 2003), the duty of the Office of Communications under subsection (1) of section 3 of that Act to secure the matters mentioned in subsection (2)(c) of that section;

(f) in relation to a company’s appointment under Chapter 1 of Part 2 of the Water Industry Act 1991 (c. 56), the duties of the Water Services Regulation Authority under section 2 of that Act;

(ff) in relation to a licence granted under Chapter 1A of Part 2 of the Act of 1991 or an agreement under section 66D or 117E of that Act, the duties of the Authority under section 2 of that Act or under that section and section 66D or 117E of that Act (as the case may be);

(g) in relation to any licence granted under article 10 of the Electricity (Northern Ireland) Order 1992 (S.I. 1992/231 (N.I. 1)), the objective and duties of the Northern Ireland Authority for Utility Regulation under Article 12 of the Energy (Northern Ireland) Order 2003 (S.I. 2003/419 (N.I. 6));

(h) in relation to any licence granted under section 8 of the Railways Act 1993 (c. 43) where none of the conditions of the licence relate to consumer protection, the duties of the Office of Rail and Road under section 4 of that Act;

(hh) in relation to a SNRP issued pursuant to the Railways Infrastructure (Access, Management and Licensing of Railway Undertakings) Regulations (Northern Ireland) 2005 where none of the conditions of the SNRP relate to consumer protection, the duties of the Department for Regional Development under regulation 36 of those Regulations;

(i) in relation to any licence granted under section 8 of the Act of 1993 where one or more than one condition of the licence relates to consumer protection, the duties of the Office of Rail Regulation under section 4 of that Act and the duties of the Strategic Rail Authority under section 207 of the Transport Act 2000 (c. 38);

(j) in relation to any access agreement (within the meaning given by section 83(1) of the Act of 1993), the duties of the Office of Rail and Road under section 4 of the Act of 1993;

(k) in relation to any franchise agreement (within the meaning given by section 23(3) of the Act of 1993), the duties of the Secretary of State, the Scottish Ministers and the National Assembly for Wales under section 4 of the Act of 1993;

(l) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(m) in relation to any licence granted under article 8 of the Gas (Northern Ireland) Order 1996 (S.I. 1996/275 (N.I. 2)), the objective and duties of the Northern Ireland Authority for Utility Regulation under Article 14 of the Energy (Northern Ireland) Order 2003;

(n) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(o) in relation to any licence granted under section 5 of the Transport Act 2000, the duties of the Civil Aviation Authority under section 87 of that Act;

(p) in relation to a company's appointment under Chapter I of Part III of the Water and Sewerage Services (Northern Ireland) Order 2006, the duties of the Northern Ireland Authority for Utility Regulation under Article 6 of that Order;

(q) in relation to regulatory conditions imposed under Part 3 of the Postal Services Act 2011, the duty of the Office of Communications under section 29 of that Act;

(r) in relation to any licence issued under section 87 of the Health and Social Care Act 2012, the duties of NHS England under sections 62 and 66 of that Act;

(s) in relation to a licence granted under Chapter 1 of Part 1 of the Civil Aviation Act 2012, the duties of the Civil Aviation Authority under section 1 of that Act, and

(t) in relation to a licence granted under section 7 of the Energy Act 2023, the objectives and duties of the Gas and Electricity Markets Authority under section 1 of that Act.

(5) In this section “sectoral regulator” means—

(a) the Civil Aviation Authority;

(b) the Northern Ireland Authority for Utility Regulation.

(d) the Director General of Telecommunications;

(e) the Water Services Regulation Authority;

(f) the Gas and Electricity Markets Authority;

(g) the Office of Communications;

(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(i) the Office of Rail and Road; . . .

(ia) NHS England;

(j) the Secretary of State;

(k) the Scottish Ministers; or

(l) the National Assembly for Wales or

(k) the Department for Regional Development.

(6) Subsection (7) applies where the CMA or the Secretary of State is considering for the purposes of this Part whether modifying the conditions of a licence granted under section 7 or 7A, 7A , 7AA, 7AB or 7AC of the Gas Act 1986 (c. 44) , section 6 of the Electricity Act 1989 (c. 29) or section 7 of the Energy Act 2023 would be reasonable and practicable for the purpose of remedying, mitigating or preventing an adverse effect on competition or any detrimental effect on customers so far as resulting from such an effect.

(7) The CMA or (as the case may be) the Secretary of State may, in deciding whether modifying the conditions of such a licence would be reasonable and practicable, have regard to those matters to which the Gas and Electricity Markets Authority may have regard by virtue of section 4AA(4) of the Act of 1986 or (as the case may be) section 3A(4) of the Act of 1989.

(8) The Secretary of State may by order modify subsection (3), (4), (5), (6) or (7).

(9) Part 2 of Schedule 9 (which makes provision for functions under this Part to be exercisable by various sectoral regulators) shall have effect.

Consultation, information and publicity

Certain duties of relevant authorities to consult: Part 4

169

(1) Subsection (2) applies where the relevant authority is proposing to make a relevant decision in a way which the relevant authority considers is likely to have a substantial impact on the interests of any person.

(2) The relevant authority shall, so far as practicable, consult that person about what is proposed before making that decision.

(3) In consulting the person concerned, the relevant authority shall, so far as practicable, give the reasons of the relevant authority for the proposed decision.

(4) In considering what is practicable for the purposes of this section the relevant authority shall, in particular, have regard to—

(a) any restrictions imposed by any timetable for making the decision; and

(b) any need to keep what is proposed, or the reasons for it, confidential.

(5) The duty under this section shall not apply in relation to the making of any decision so far as particular provision is made elsewhere by virtue of this Part for consultation before the making of that decision.

(6) In this section—

“the relevant authority” means the CMA, the appropriate Minister or the Secretary of State; and

“relevant decision” means— in the case of the CMA, any decision by the CMA— to make a reference under section 131 in a case where the CMA has not published a market study notice under section 130A in relation to the matter concerned; as to whether to accept undertakings in lieu of a reference under section 154A; to vary under section 135 such a reference ; or— on the questions mentioned in section 134, 141 or 141A; ... to accept undertakings or make orders under section 161C; and to take action under section 162A(5); and in the case of the appropriate Minister (other than the Secretary of State acting alone), any decision by the appropriate Minister— ... to make a reference under section 132; or to vary under section 135 such a reference; ... in the case of the Secretary of State, any decision by the Secretary of State— to make a reference under section 132; to vary under section 135 such a reference; in a case where the Secretary of State is required to make a reference under section 140A, whether to make a reference under subsection (5) or (6) of that section; or to vary under section 140B a reference made under section 140A(6). ...

General information duties

170

(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) The CMA shall give the Secretary of State or the appropriate Minister so far as he is not the Secretary of State acting alone—

(a) such information in its possession as the Secretary of State or (as the case may be) the appropriate Minister concerned may by direction reasonably require to enable him to carry out his functions under this Part; and

(b) any other assistance which the Secretary of State or (as the case may be) the appropriate Minister concerned may by direction reasonably require for the purpose of assisting him in carrying out his functions under this Part and which it is within the power of the CMA or (as the case may be) the Commission to give.

(4) The CMA shall give the Secretary of State or the appropriate Minister so far as he is not the Secretary of State acting alone any information in its possession which has not been requested by the Secretary of State or (as the case may be) the appropriate Minister concerned but which, in the opinion of the CMA, would be appropriate to give to the Secretary of State or (as the case may be) the appropriate Minister concerned for the purpose of assisting him in carrying out his functions under this Part.

(5) The Secretary of State or (as the case may be) the appropriate Minister concerned shall have regard to any information given to him under subsection (3) or (4).

(6) Any direction given under subsection (3)—

(a) shall be in writing; and

(b) may be varied or revoked by a subsequent direction.

Advice and information: Part 4

171

(1) ... The CMA shall prepare and publish general advice and information about —

(a) the making and consideration by it of market investigation references, and

(b) the way in which relevant customer benefits may affect the taking of enforcement action in relation to such references.

(2) The CMA may at any time publish revised, or new, advice or information.

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) Advice and information published under this section shall be prepared with a view to—

(a) explaining relevant provisions of this Part to persons who are likely to be affected by them; and

(b) indicating how the CMA expects such provisions to operate.

(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) Advice (or information) published by virtue of subsection (1) ... may include advice (or information) about the factors which the CMA may take into account in considering whether, and if so how, to exercise a function conferred by this Part.

(8) Any advice or information published by the CMA under this section shall be published in such manner as the CMA considers appropriate.

(9) In preparing any advice or information under this section, the CMA shall consult such persons and such other persons as it considers appropriate.

(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Further publicity requirements: Part 4

172

(1) The CMA shall publish—

(a) any reference made by it under section 131, other than a reference treated as so made by virtue of section 140A(5)(b);

(aa) any decision not to make a reference under section 131 following a consultation in relation to the matter concerned under section 169;

(b) any variation made by it under section 135 of a reference under section 131;

(d) such information as it considers appropriate about any decision made by it under section 152(1) to bring a case to the attention of the Secretary of State.

(2) The CMA shall also publish—

(za) any extension by it under section 137 of the period within which a report under section 136 is to be prepared and published;

(zb) any extension by it under section 138A of the period within which its duty under section 138(2) is to be discharged;

(zc) any decision made by it under section 138A(A1)(b) that it is not reasonably practicable for the CMA to discharge its duty under section 138(2) in accordance with section 138A(1);

(a) any decision made by it under section 138(2) neither to accept an undertaking under section 159 nor to make an order under section 161;

(b) any decision made by it that there has been a material change of circumstances as mentioned in section 138(3) or there is another special reason as mentioned in that section;

(ba) any extension by it under section 144 of the period within which a report under section 142 is to be prepared and action is to be taken in relation to it;

(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e) any enforcement undertaking accepted by it under section 157;

(f) any enforcement order made by it under section 158; ...

(g) any variation, release or revocation of such an undertaking or order; and

(h) any decision by it to take action under section 162A(5).

(3) The Secretary of State shall publish—

(a) any reference made by him under section 132;

(b) any variation made by him under section 135 of a reference under section 132;

(d) any decision made by him to revoke such a notice;

(da) any reference made by him under section 140A(5) or (6);

(db) any variation made by him under section 140B of a reference under section 140A(6);

(e) any decision made by him under section 147(2) or (as the case may be) 147A(2) neither to accept an undertaking under section 159 nor to make an order under section 161;

(f) any enforcement undertaking accepted by him under section 157;

(g) any variation or release of such an undertaking; and

(h) any direction given by him under section 170(3) in connection with the exercise by him of his functions under section 132(3).

(4) The appropriate Minister (other than the Secretary of State acting alone) shall publish—

(a) any reference made by him under section 132;

(b) any variation made by him under section 135 of a reference under section 132; and

(c) any direction given by him under section 170(3) in connection with the exercise by him of his functions under section 132(3).

(5) Where any person is under an obligation by virtue of subsection (1), (2), (3) or (4) to publish the result of any action taken by that person or any decision made by that person, the person concerned shall, subject to subsections (6) and (7), also publish that person’s reasons for the action concerned or (as the case may be) the decision concerned.

(6) Such reasons need not, if it is not reasonably practicable to do so, be published at the same time as the result of the action concerned or (as the case may be) as the decision concerned.

(7) Subsections (5) and (6) shall not apply in relation to any case falling within subsection (1)(d) ....

(7A) Subsection (6) shall not apply in relation to any case falling within subsection (1)(a) or (3)(da).

(8) The Secretary of State shall publish his reasons for—

(a) any decision made by him under section 146(2) or 146A(2); or

(b) any decision to make an order under section 153(3) or vary or revoke such an order.

(9) Such reasons may be published after—

(a) in the case of subsection (8)(a), the publication of the decision concerned; and

(b) in the case of subsection (8)(b), the making of the order or of the variation or revocation;

if it is not reasonably practicable to publish them at the same time as the publication of the decision or (as the case may be) the making of the order or variation or revocation.

(10) Where the Secretary of State has decided under section 147(2) or 147A(2) to accept an undertaking under section 159 or to make an order under section 161, he shall (after the acceptance of the undertaking or (as the case may be) the making of the order) lay details of his decision and his reasons for it, and the CMA's report under section 142, before each House of Parliament.

(11) Where the Secretary of State has decided, in accordance with the CMA’s advice under section 162(3) or 162A (8), to accept or release an undertaking under section 159, or to make or revoke an order under section 161, the Secretary of State must, after the acceptance or release of the undertaking or (as the case may be) the making or revocation of the order, lay details of the Secretary of State’s decision and the reasons for it, and the CMA’s advice, before each House of Parliament.

Defamation: Part 4

173

For the purposes of the law relating to defamation, absolute privilege attaches to any advice, guidance, notice or direction given, or decision or report made, by the CMA, by the Secretary of State or, by the appropriate Minister (other than the Secretary of State acting alone) ... in the exercise of any of their functions under this Part.

Investigation powers

Investigation powers of OFT

174

(1) For the purposes of this section, the permitted purposes are the following—

(a) assisting the CMA in carrying out its functions under section 5 in relation to a matter in a case where it has published a market study notice;

(b) assisting the CMA in carrying out any functions, including enforcement functions, exercisable by it under or by virtue of this Part in connection with a matter that is or has been the subject of a reference under section 131 or 132 or possible reference under section 131;

(c) assisting the CMA or the Secretary of State in carrying out any functions, including enforcement functions, of the CMA or (as the case may be) the Secretary of State under or by virtue of this Part in connection with a matter that is or has been the subject of a reference under section 140A(6) or possible reference under section 140A(5) or (6).

(2) The CMA may exercise any of the powers in subsections (3) to (5) for a permitted purpose.

(3) The CMA may give notice to any person requiring him—

(a) to attend at a time and at a place, or in a manner (which may be remote), specified in the notice; and

(b) to give evidence to the CMA or a person nominated by the CMA for the purpose.

(4) The CMA may give notice to any person requiring him—

(a) to produce any documents which—

(i) are specified or described in the notice, or fall within a category of document which is specified or described in the notice; and

(ii) are in that person’s custody or under his control; and

(b) to produce them at a time and place so specified and to a person so specified.

(5) The CMA may give notice to any person who carries on any business requiring him—

(a) to supply to the CMA such estimates, forecasts, returns or other information as may be specified or described in the notice; and

(b) to supply it at a time and place, and in a form and manner, so specified and to a person so specified.

(6) A notice under this section shall—

(a) specify the permitted purpose for which the notice is given, including the function or functions in question; and

(b) include information about the possible consequences of not complying with the notice

(6A) The CMA or any person nominated by it for the purpose may, for a permitted purpose, take evidence on oath and for that purpose may administer oaths.

(7) The person to whom any document is produced in accordance with a notice under this section may, for a permitted purpose, copy the document so produced.

(8) No person shall be required under this section—

(a) to give any evidence or produce any documents which he could not be compelled to give or produce in civil proceedings before the court; or

(b) to supply any information which he could not be compelled to supply in evidence in such proceedings.

(9) No person shall be required, in compliance with a notice under this section, to go more than 10 miles from his place of residence unless his necessary travelling expenses are paid or offered to him.

(9A) In subsection (1), “enforcement functions” means—

(a) in relation to the CMA—

(i) functions conferred by virtue of section 164(2)(b) on the CMA by enforcement orders;

(ii) functions of the CMA in relation to the variation, supersession or release of enforcement undertakings or the variation or revocation of enforcement orders;

(iii) functions of the CMA under or by virtue of section 160 or 162 in relation to enforcement undertakings or enforcement orders;

(b) in relation to the Secretary of State—

(i) functions conferred by virtue of section 164(2)(b) on the Secretary of State by enforcement orders;

(ii) functions of the Secretary of State in relation to the variation, supersession or release of enforcement undertakings or the variation or revocation of enforcement orders;

(iii) functions of the Secretary of State under or by virtue of section 160 in relation to enforcement undertakings or enforcement orders.

(10) Any reference in this section to the production of a document includes a reference to the production of a legible and intelligible copy of information recorded otherwise than in legible form.

(11) 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.

Enforcement of powers under section 174: offences

175

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Investigation powers of the Commission

176

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Reports

Excisions from reports: Part 4

177

(1) Subsection (2) applies where

(a) the Secretary of State is under a duty to publish a report of the CMA under section 142;

(b) the Secretary of State is under a duty to lay the CMA’s advice under section 162(3) or 162A(8) before each House of Parliament.

(2) The Secretary of State may exclude a matter from the report or advice if he considers that publication of the matter , or the inclusion of it in the advice laid before Parliament, would be inappropriate.

(3) In deciding what is inappropriate for the purposes of subsection (2) the Secretary of State shall have regard to the considerations mentioned in section 244.

(4) The CMA shall advise the Secretary of State as to the matters (if any) which it considers should be excluded by him under subsection (2).

(5) References in sections 136(4) to (6)... and 172(10) to the giving or laying of a report of the CMA shall be construed as references to the giving or laying of the report as published.

Minority reports of Commission: Part 4

178

(1) Subsection (2) applies where, on a market investigation reference, a member of a group constituted in connection with the reference ..., disagrees with any decisions contained in the report of the CMA under this Part as the decisions of the CMA.

(2) The report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing.

Other

Review of decisions under Part 4

179

(1) Any person aggrieved by a decision of the CMA, the appropriate Minister, or the Secretary of State in connection with a reference or possible reference under this Part may apply to the Competition Appeal Tribunal for a review of that decision.

(2) For this purpose “decision”—

(za) does not include a decision whether to carry out functions under section 5 in a case where the CMA is, or would have been, required to publish a market study notice (see section 130A(1));

(a) does not include a decision to impose a penalty under section 167A(1) or 174A(1) or (1A); but

(b) includes a failure to take a decision permitted or required by this Part in connection with a reference or possible reference.

(3) Except in so far as a direction to the contrary is given by the Competition Appeal Tribunal, the effect of the decision is not suspended by reason of the making of the application.

(4) In determining such an application the Competition Appeal Tribunal shall apply the same principles as would be applied by a court on an application for judicial review.

(5) The Competition Appeal Tribunal may—

(a) dismiss the application or quash the whole or part of the decision to which it relates; and

(b) where it quashes the whole or part of that decision, refer the matter back to the original decision maker with a direction to reconsider and make a new decision in accordance with the ruling of the Competition Appeal Tribunal.

(6) An appeal lies on any point of law arising from a decision of the Competition Appeal Tribunal under this section to the appropriate court.

(7) An appeal under subsection (6) requires the permission of the Tribunal or the appropriate court.

(8) In this section—

“the appropriate court” means the Court of Appeal or, in the case of Tribunal proceedings in Scotland, the Court of Session; and

“Tribunal rules” has the meaning given by section 15(1).

Offences

180

(1) Sections 116A (intentional destruction etc of documents), 117 (false or misleading information) and 125 (offences by bodies corporate) shall apply, with the modifications mentioned in subsection (2) below, for the purposes of this Part as they apply for the purposes of Part 3.

(1A) For the purposes of subsection (1), section 116A has effect as if—

(a) references to section 109 were references to section 174;

(b) the reference to section 110(1) or (1A) were a reference to section 174A(1) or (1A).

(1B) For the purposes of subsection (1), section 117 has effect as if—

(a) references to “the appropriate authority” were to “the relevant authority” within the meaning of section 174A;

(b) the reference to section 110(1) or (1A) were a reference to section 174A(1) or (1A).

Orders under Part 4

181

(1) Any power of the Secretary of State to make an order or regulations under this Part shall be exercisable by statutory instrument.

(2) Any power of the Secretary of State to make an order or regulations under this Part—

(a) may be exercised so as to make different provision for different cases or different purposes;

(b) includes power to make such incidental, supplementary, consequential, transitory, transitional or saving provision as the Secretary of State considers appropriate.

(3) The power of the Secretary of State under section 131C(1), 136(9), 137(3), 138B(6), 144(2), 153(3) or 168(8) as extended by subsection (2) above may be exercised by modifying any enactment comprised in or made under this Act, or any other enactment.

(4) An order made by the Secretary of State under section 131C(1), 137(3), 138B(6), 144(2), 158, 160 , 161, ... or under section 114(3)(b) or (4)(b) as applied by section 174A(10), is subject to the negative procedure.

(4A) Regulations made under section 167B(9) or 174D(11) are subject to the negative procedure.

(5) An order made by the Secretary of State under section 136(9) or 168(8), or section 128(6) as applied by section 183(2), is subject to the affirmative procedure.

(5A) Regulations made under paragraph (b) of the definition of “qualifying remedial action” in section 161B(3), or under section 167B(7) or 174D(6A), are subject to the affirmative procedure.

(5B) Any provision that may be made by order or regulations under this Part subject to the negative procedure may instead be made by order or regulations subject to the affirmative procedure.

(6) An order made by the Secretary of State under section 153(3) shall be laid before Parliament after being made and shall cease to have effect unless approved, within the period of 28 days beginning with the day on which it is made, by a resolution of each House of Parliament.

(7) In calculating the period of 28 days mentioned in subsection (6), no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.

(8) If an order made by the Secretary of State ceases to have effect by virtue of subsection (6), any modification made by it of an enactment is repealed (and the previous enactment revived) but without prejudice to the validity of anything done in connection with that modification before the order ceased to have effect and without prejudice to the making of a new order.

(9) If, apart from this subsection, an order made by the Secretary of State under section 153(3) would be treated for the purposes of the standing orders of either House of Parliament as a hybrid instrument, it shall proceed in that House as if it were not such an instrument.

(10) References in this section to an order made under this Part include references to an order made under section ... 114(3)(b) or (4)(b) as applied by section 174A(10) and an order made under section 128(6) as applied by section 183(2).

(11) Where orders or regulations under this Part are subject to “the affirmative procedure”, the orders or regulations may not be made unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, each House of Parliament.

(12) Where orders or regulations under this Act are subject to “the negative procedure”, the statutory instrument containing them is subject to annulment in pursuance of a resolution of either House of Parliament.

Service of documents: Part 4

182

Section 126 shall apply for the purposes of this Part as it applies for the purposes of Part 3.

Interpretation: Part 4

183

(1) In this Part, unless the context otherwise requires—

“action” includes omission; and references to the taking of action include references to refraining from action;

“business” includes a professional practice and includes any other undertaking which is carried on for gain or reward or which is an undertaking in the course of which goods or services are supplied otherwise than free of charge;

“change of circumstances” includes any discovery that information has been supplied which is false or misleading in a material respect;

“consumer” means any person who is— a person to whom goods are or are sought to be supplied (whether by way of sale or otherwise) in the course of a business carried on by the person supplying or seeking to supply them; or a person for whom services are or are sought to be supplied in the course of a business carried on by the person supplying or seeking to supply them; and who does not receive or seek to receive the goods or services in the course of a business carried on by him;

“customer” includes a customer who is not a consumer;

“enactment” includes an Act of the Scottish Parliament, Northern Ireland legislation and an enactment comprised in subordinate legislation, and includes an enactment whenever passed or made;

“enterprise” means the activities, or part of the activities, of a business;

“goods” includes buildings and other structures, and also includes ships, aircraft and hovercraft;

“Minister of the Crown” means the holder of an office in Her Majesty’s Government in the United Kingdom and includes the Treasury;

“modify” includes amend or repeal;

“notice” means notice in writing;

“subordinate legislation” has the same meaning as in the Interpretation Act 1978 (c. 30) and also includes an instrument made under an Act of the Scottish Parliament and an instrument made under Northern Ireland legislation; and

“supply”, in relation to the supply of goods, includes supply by way of sale, lease, hire or hire-purchase, and, in relation to buildings or other structures, includes the construction of them by a person for another person.

(2) Sections 127(1)(b) and (4) to (6) and 128 shall apply for the purposes of this Part as they apply for the purposes of Part 3.

(3) For the purposes of this Part a market investigation reference is finally determined if—

(a) where the reference is made under section 131 or 132—

(i) the period permitted by section 137 for preparing and publishing a report under section 136 has expired and no such report has been prepared and published;

(ii) such a report has been prepared and published within the period permitted by section 137 and contains the decision that there is no adverse effect on competition;

(iii) the CMA has decided under section 138(2) neither to accept undertakings under section 159 nor to make an order under section 161;...

(iiia) the CMA has accepted an undertaking fully in lieu of a report under section 154A; or

(iv) the CMA has accepted an undertaking under section 159 or made an order under section 161;

(b) where the reference is a restricted PI reference or a full PI reference—

(i) the period permitted by section 144 for the preparation of the report of the CMA under section 142 and for action to be taken in relation to it under section 143(1) or (3) or (as the case may be) 143A(2) or (3) has expired while the intervention notice is still in force and no such report has been so prepared or no such action has been taken;

(ii) the CMA has terminated under section 145(1) its investigation and the reference is finally determined under paragraph (a) above ...;

(iii) the report of the CMA has been prepared under section 142 and published under section 143(1) or (as the case may be) 143A(2) within the period permitted by section 144;

(iv) the intervention notice was revoked and the reference is finally determined under paragraph (a) above ...;

(v) the Secretary of State has failed to make and publish a decision under subsection (2) of section 146 within the period permitted by subsection (3) of that section or (as the case may be) under subsection (2) of section 146A within the period permitted by subsection (6) of that section and the reference is finally determined under paragraph (a) above;

(vi) the Secretary of State has decided under section 146(2) that no eligible public interest consideration is relevant and the reference is finally determined under paragraph (a) above ...;

(via) the Secretary of State has made no finding at all under section 146A(2) and the reference is finally determined under paragraph (a) above;

(vii) the Secretary of State has decided under 146(2) that a public interest consideration is relevant but has decided under section 147(2) neither to accept an undertaking under section 159 nor to make an order under section 161; ...

(viia) the Secretary of State has made an adverse public interest finding under section 146A(2) but has decided under section 147A(2) neither to accept an undertaking under section 159 nor to make an order under section 161;

(viii) the Secretary of State has decided under section 146(2) that a public interest consideration is relevant and has accepted an undertaking under section 159 or made an order under section 161; or

(ix) the Secretary of State has made an adverse public interest finding under section 146A(2) and has accepted an undertaking under section 159 or made an order under section 161.

(4) For the purposes of this Part the time when a market investigation reference is finally determined is—

(a) in a case falling within subsection (3)(a)(i) or (b)(i), the expiry of the time concerned;

(b) in a case falling within subsection (3)(a)(ii) or (b)(iii), the publication of the report;

(c) in a case falling within subsection (3)(a)(iv) or (b)(viii) or (ix), the acceptance of the undertaking concerned or (as the case may be) the making of the order concerned; and

(d) in any other case, the making of the decision or last decision concerned or the taking of the action concerned.

(5) The references in subsection (4) to subsections (3)(a)(i), (ii) and (iv) include those enactments as applied by subsection (3)(b)(ii), (iv), (v), (vi) or (via).

(6) In subsection (4)(c) the reference to the acceptance of the undertaking concerned or the making of the order concerned shall, in a case where the enforcement action concerned involves the acceptance of a group of undertakings, the making of a group of orders or the acceptance and making of a group of undertakings and orders, be treated as a reference to the acceptance or making of the last undertaking or order in the group; but undertakings or orders which vary, supersede or revoke earlier undertakings or orders shall be disregarded for the purposes of subsections (3)(a)(iv) and (b)(viii) and (ix) and (4)(c).

(7) Any duty to publish which is imposed on a person by this Part shall, unless the context otherwise requires, be construed as a duty on that person to publish in such manner as that person considers appropriate for the purpose of bringing the matter concerned to the attention of those likely to be affected by it.

Index of defined expressions: Part 4

184

In this Part, the expressions listed in the left-hand column have the meaning given by, or are to be interpreted in accordance with, the provisions listed in the right-hand column.

Part 5 — The Competition Commission

The Commission

185

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annual report of Commission

186

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Commission rules of procedure

187

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part 6 — Cartel offence

Cartel offence

188

(1) An individual is guilty of an offence if he ... agrees with one or more other persons to make or implement, or to cause to be made or implemented, arrangements of the following kind relating to at least two undertakings (A and B).

(2) The arrangements must be ones which, if operating as the parties to the agreement intend, would—

(a) directly or indirectly fix a price for the supply by A in the United Kingdom (otherwise than to B) of a product or service,

(b) limit or prevent supply by A in the United Kingdom of a product or service,

(d) divide between A and B the supply in the United Kingdom of a product or service to a customer or customers,

(e) divide between A and B customers for the supply in the United Kingdom of a product or service, or

(f) be bid-rigging arrangements.

(3) Unless subsection (2)(d), (e) or (f) applies, the arrangements must also be ones which, if operating as the parties to the agreement intend, would—

(a) directly or indirectly fix a price for the supply by B in the United Kingdom (otherwise than to A) of a product or service,

(b) limit or prevent supply by B in the United Kingdom of a product or service, or

(4) In subsections (2)(a) to (d) and (3), references to supply or production are to supply or production in the appropriate circumstances (for which see section 189).

(5) “Bid-rigging arrangements” are arrangements under which, in response to a request for bids for the supply of a product or service in the United Kingdom, or for the production of a product in the United Kingdom—

(a) A but not B may make a bid, or

(b) A and B may each make a bid but, in one case or both, only a bid arrived at in accordance with the arrangements.

(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) “Undertaking” has the same meaning as in Part 1 of the 1998 Act.

(8) This section is subject to section 188A.

Cartel offence: supplementary

189

(1) For section 188(2)(a), the appropriate circumstances are that A’s supply of the product or service would be at a level in the supply chain at which the product or service would at the same time be supplied by B in the United Kingdom.

(2) For section 188(2)(b), the appropriate circumstances are that A’s supply of the product or service would be at a level in the supply chain—

(a) at which the product or service would at the same time be supplied by B in the United Kingdom, or

(b) at which supply by B in the United Kingdom of the product or service would be limited or prevented by the arrangements.

(3) For section 188(2)(c), the appropriate circumstances are that A’s production of the product would be at a level in the production chain—

(a) at which the product would at the same time be produced by B in the United Kingdom, or

(b) at which production by B in the United Kingdom of the product would be limited or prevented by the arrangements.

(4) For section 188(2)(d), the appropriate circumstances are that A’s supply of the product or service would be at the same level in the supply chain as B’s.

(5) For section 188(3)(a), the appropriate circumstances are that B’s supply of the product or service would be at a level in the supply chain at which the product or service would at the same time be supplied by A in the United Kingdom.

(6) For section 188(3)(b), the appropriate circumstances are that B’s supply of the product or service would be at a level in the supply chain—

(a) at which the product or service would at the same time be supplied by A in the United Kingdom, or

(b) at which supply by A in the United Kingdom of the product or service would be limited or prevented by the arrangements.

(7) For section 188(3)(c), the appropriate circumstances are that B’s production of the product would be at a level in the production chain—

(a) at which the product would at the same time be produced by A in the United Kingdom, or

(b) at which production by A in the United Kingdom of the product would be limited or prevented by the arrangements.

Functions to be exercised by CMA groups

190

(1) A person guilty of an offence under section 188 is liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both;

(b) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both.

(2) In England and Wales and Northern Ireland, proceedings for an offence under section 188 may be instituted only—

(a) by the Director of the Serious Fraud Office, or

(b) by or with the consent of the CMA.

(3) No proceedings may be brought for an offence under section 188 in respect of an agreement outside the United Kingdom, unless it has been implemented in whole or in part in the United Kingdom.

(4) Where, for the purpose of the investigation or prosecution of offences under section 188, the CMA gives a person written notice under this subsection, no proceedings for an offence under section 188 that falls within a description specified in the notice may be brought against that person in England and Wales or Northern Ireland except in circumstances specified in the notice.

Extradition

191

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Criminal investigations by OFT

Investigation of offences under section 188

192

(1) The CMA may conduct an investigation if there are reasonable grounds for suspecting that an offence under section 188 has been committed.

(2) The powers of the CMA under sections 193 and 194 are exercisable, but only for the purposes of an investigation under subsection (1), in any case where it appears to the CMA that there is good reason to exercise them for the purpose of investigating the affairs, or any aspect of the affairs, of any person (“the person under investigation”).

Powers when conducting an investigation

193

(1) The CMA may by notice in writing require the person under investigation, or any other person who it has reason to believe has relevant information, to answer questions, or otherwise provide information, with respect to any matter relevant to the investigation at a specified place and either at a specified time or forthwith.

(2) The CMA may by notice in writing require the person under investigation, or any other person, to produce, at a specified place and either at a specified time or forthwith, specified documents, or documents of a specified description, which appear to the CMA to relate to any matter relevant to the investigation.

(3) If any such documents are produced, the CMA may—

(a) take copies or extracts from them;

(b) require the person producing them to provide an explanation of any of them.

(4) If any such documents are not produced, the CMA may require the person who was required to produce them to state, to the best of his knowledge and belief, where they are.

(5) A notice under subsection (1) or (2) must indicate—

(a) the subject matter and purpose of the investigation; and

(b) the nature of the offences created by section 201.

Power to enter premises under a warrant

194

(1) On an application made to it by the CMA or, in Scotland, the procurator fiscal, the appropriate body may issue a warrant if it is satisfied that there are reasonable grounds for believing—

(a) that there are on or accessible from any premises documents which the CMA has power under section 193 to require to be produced for the purposes of an investigation; and

(b) that—

(i) a person has failed to comply with a requirement under that section to produce the documents;

(ii) it is not practicable to serve a notice under that section in relation to them; or

(iii) the service of such a notice in relation to them might seriously prejudice the investigation.

(1A) In subsection (1), “appropriate body” means—

(a) in England and Wales and Northern Ireland, the High Court or the Competition Appeal Tribunal;

(b) in Scotland, the sheriff.

(2) A warrant under this section shall authorise a named officer of the CMA, and any other officers of the CMA whom the CMA has authorised in writing to accompany the named officer—

(a) to enter the premises, using such force as is reasonably necessary for the purpose;

(b) to search the premises and—

(i) take possession of any documents appearing to be of the relevant kind, or

(ii) take, in relation to any documents appearing to be of the relevant kind, any other steps which may appear to be necessary for preserving them or preventing interference with them;

(c) to require any person to provide an explanation of any document appearing to be of the relevant kind or to state, to the best of his knowledge and belief, where it may be found;

(d) to require any information which is stored in any electronic form and is accessible from the premises ... to be produced in a form—

(i) in which it can be taken away, and

(ii) in which it is visible and legible or from which it can readily be produced in a visible and legible form.

(e) to operate any equipment found on the premises for the purposes of producing such information in such a form;

(f) to require any person on the premises to give the named officer any assistance the named officer may reasonably require (including for the purposes of paragraphs (d) and (e));

(g) to take copies of, or seize, anything produced in accordance with paragraph (d) or (e) which the named officer considers relates to any matter relevant to the investigation.

(3) Documents are of the relevant kind if they are of a kind in respect of which the application under subsection (1) was granted.

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

(4A) An application for a warrant under this section must be made—

(a) in the case of an application to the High Court or the sheriff, in accordance with rules of court;

(b) in the case of an application to the Competition Appeal Tribunal, in accordance with rules made under section 15.

(5) In Part 1 of Schedule 1 to the Criminal Justice and Police Act 2001 (c. 16) (powers of seizure to which section 50 of that Act applies), after paragraph 73 there is inserted—

(73B) The power of seizure conferred by section 194(2) of the Enterprise Act 2002 (seizure of documents for the purposes of an investigation under section 192(1) of that Act).

Exercise of powers by authorised person

195

(1) The CMA may authorise any competent person who is not an officer of the CMA to exercise on its behalf all or any of the powers conferred by section 193 or 194.

(2) No such authority may be granted except for the purpose of investigating the affairs, or any aspect of the affairs, of a person specified in the authority.

(3) No person is bound to comply with any requirement imposed by a person exercising powers by virtue of any authority granted under this section unless he has, if required to do so, produced evidence of his authority.

Privileged information etc.

196

(1) A person may not under section 193 or 194 be required to disclose any information or produce any document which he would be entitled to refuse to disclose or produce on grounds of legal professional privilege in proceedings in the High Court, except that a lawyer may be required to provide the name and address of his client.

(2) A person may not under section 193 or 194 be required to disclose any information or produce any document in respect of which he owes an obligation of confidence by virtue of carrying on any banking business unless—

(a) the person to whom the obligation of confidence is owed consents to the disclosure or production; or

(b) the CMA has authorised the making of the requirement.

(2A) Nothing in section 194 authorises an officer to produce or take possession of, or make copies of or take extracts from, anything which, by virtue of subsections (1) or (2), a person could not be required to disclose or produce under section 193 or 194.

(3) In the application of this section to Scotland, the reference in subsection (1)—

(a) to proceedings in the High Court is to be read as a reference to legal proceedings generally; and

(b) to an entitlement on grounds of legal professional privilege is to be read as a reference to an entitlement by virtue of any rule of law whereby—

(i) communications between a professional legal adviser and his client, or

(ii) communications made in connection with or in contemplation of legal proceedings and for the purposes of those proceedings,

are in such proceedings protected from disclosure on the ground of confidentiality.

Restriction on use of statements in court

197

(1) A statement by a person in response to a requirement imposed by virtue of section 193 or 194 may only be used in evidence against him—

(a) on a prosecution for an offence under section 201(2); or

(b) on a prosecution for some other offence where in giving evidence he makes a statement inconsistent with it.

(2) However, the statement may not be used against that person by virtue of paragraph (b) of subsection (1) unless evidence relating to it is adduced, or a question relating to it is asked, by or on behalf of that person in the proceedings arising out of the prosecution.

Use of statements obtained under Competition Act 1998

198

In the 1998 Act, after section 30 there is inserted—

(30A) A statement made by a person in response to a requirement imposed by virtue of any of sections 26 to 28 may not be used in evidence against him on a prosecution for an offence under section 188 of the Enterprise Act 2002 unless, in the proceedings— (a) in giving evidence, he makes a statement inconsistent with it, and (b) evidence relating to it is adduced, or a question relating to it is asked, by him or on his behalf.

Surveillance powers

199

(1) The Regulation of Investigatory Powers Act 2000 (c. 23) is amended as follows.

(2) In section 32 (authorisation of intrusive surveillance)—

(a) after subsection (3) there is inserted—

(3A) In the case of an authorisation granted by the chairman of the OFT, the authorisation is necessary on grounds falling within subsection (3) only if it is necessary for the purpose of preventing or detecting an offence under section 188 of the Enterprise Act 2002 (cartel offence).

;

(b) in subsection (6) after paragraph (m) there is inserted

; and (n) the chairman of the OFT.

(3) In section 33 (rules for grant of authorisations) after subsection (4) there is inserted—

(4A) The chairman of the OFT shall not grant an authorisation for the carrying out of intrusive surveillance except on an application made by an officer of the OFT.

(4) In subsection (5)(a) of that section, after “officer” there is inserted “ or the chairman or an officer of the OFT ”.

(5) In section 34 (grant of authorisation in the senior officer’s absence)—

(a) in subsection (1)(a), after “or by” there is inserted “ an officer of the OFT or ”;

(b) in subsection (2)(a), after “may be,” there is inserted “ as chairman of the OFT or ”;

(m) a person is entitled to act for the chairman of the OFT if he is an officer of the OFT designated by it for the purposes of this paragraph as a person entitled so to act in an urgent case.

(6) In section 35 (notification of authorisations for intrusive surveillance)—

(a) in subsections (1) and (10), for “or customs” there is substituted “ , customs or OFT ”;

(b) in subsection (10), after paragraph (b) there is inserted—

(ba) the chairman of the OFT; or

;

(7) In section 36 (approval required for authorisations to take effect)—

(a) in subsection (1), after paragraph (d) there is inserted

; or (e) an officer of the OFT.

;

(b) in subsection (6), after paragraph (g) there is inserted

; and (h) where the authorisation was granted by the chairman of the OFT or a person entitled to act for him by virtue of section 34(4)(m), that chairman.

(8) In section 37 (quashing of police and customs authorisations etc.) in subsection (1), after paragraph (d) there is inserted

; or (e) an officer of the OFT.

(9) In section 40 (information to be provided to Surveillance Commissioners) after paragraph (d) there is inserted

, and (e) every officer of the OFT,

(10) In section 46 (restrictions on authorisations extending to Scotland), in subsection (3), after paragraph (d) there is inserted—

(da) the OFT;

(11) In section 48 (interpretation of Part 2), in subsection (1), after the entry relating to “directed” and “intrusive” there is inserted—

“OFT” means the Office of Fair Trading;

Authorisation of action in respect of property

200

(1) Part 3 of the Police Act 1997 (c. 50) (authorisation of action in respect of property) is amended as follows.

(2) In section 93 (authorisation to interfere with property etc.)—

(a) in subsection (1B), after “customs officer” there is inserted “ or an officer of the Office of Fair Trading ”;

(b) after subsection (2A) there is inserted—

(2AA) Where the authorising officer is the chairman of the Office of Fair Trading, the only purpose falling within subsection (2)(a) is the purpose of preventing or detecting an offence under section 188 of the Enterprise Act 2002.

;

, or (e) if the authorising officer is within subsection (5)(i), by an officer of the Office of Fair Trading.

;

(d) in subsection (5), after paragraph (h) there is inserted

; or (i) the chairman of the Office of Fair Trading.

(3) In section 94 (authorisation given in absence of authorising officer) in subsection (2), after paragraph (f) there is inserted—

(g) where the authorising officer is within paragraph (i) of that subsection, by an officer of the Office of Fair Trading designated by it for the purposes of this section.

Offences

201

(1) Any person who without reasonable excuse fails to comply with a requirement imposed on him under section 193 or 194 is guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both.

(2) A person who, in purported compliance with a requirement under section 193 or 194—

(a) makes a statement which he knows to be false or misleading in a material particular; or

(b) recklessly makes a statement which is false or misleading in a material particular,

is guilty of an offence.

(3) A person guilty of an offence under subsection (2) is liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both; and

(b) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both.

(4) Where any person—

(a) knows or suspects that an investigation by the Serious Fraud Office or the CMA into an offence under section 188 is being or is likely to be carried out; and

(b) falsifies, conceals, destroys or otherwise disposes of, or causes or permits the falsification, concealment, destruction or disposal of documents which he knows or suspects are or would be relevant to such an investigation,

he is guilty of an offence unless he proves that he had no intention of concealing the facts disclosed by the documents from the persons carrying out such an investigation.

(5) A person guilty of an offence under subsection (4) is liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years or to a fine or to both; and

(b) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both.

(6) A person who intentionally obstructs a person in the exercise of his powers under a warrant issued under section 194 is guilty of an offence and liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine or to both; and

(b) on summary conviction, to a fine not exceeding the statutory maximum.

Interpretation of sections 192 to 201

202

In sections 192 to 201—

“documents” includes information recorded in any form and, in relation to information recorded otherwise than in a form in which it is visible and legible, references to its production include references to producing it in a form in which it is visible and legible or from which it can readily be produced in a visible and legible form;

“person under investigation” has the meaning given in section 192(2).

Part 7 — Miscellaneous Competition Provisions

Powers of entry under 1998 Act

Powers of entry

203

(1) The 1998 Act is amended as follows.

(2) In section 28 (power to enter premises under a warrant), after subsection (3) there is inserted—

(3A) A warrant under this section may authorise persons specified in the warrant to accompany the named officer who is executing it.

(3) In section 62 (power to enter premises: Commission investigations), after subsection (5) there is inserted—

(5A) A warrant under this section may authorise persons specified in the warrant to accompany the named officer who is executing it.

(4) In section 63 (power to enter premises: Director’s special investigations), after subsection (5) there is inserted—

(5A) A warrant under this section may authorise persons specified in the warrant to accompany the named authorised officer who is executing it.

Directors disqualification

Disqualification

204

(1) The Company Directors Disqualification Act 1986 (c. 46) is amended as follows.

(2) The following sections are inserted after section 9 (matters for determining unfitness in certain cases)—

Disqualification for competition infringements (9A) (1) The court must make a disqualification order against a person if the following two conditions are satisfied in relation to him. (2) The first condition is that an undertaking which is a company of which he is a director commits a breach of competition law. (3) The second condition is that the court considers that his conduct as a director makes him unfit to be concerned in the management of a company. (4) An undertaking commits a breach of competition law if it engages in conduct which infringes any of the following— (a) the Chapter 1 prohibition (within the meaning of the Competition Act 1998) (prohibition on agreements, etc. preventing, restricting or distorting competition); (b) the Chapter 2 prohibition (within the meaning of that Act) (prohibition on abuse of a dominant position); (c) Article 81 of the Treaty establishing the European Community (prohibition on agreements, etc. preventing, restricting or distorting competition); (d) Article 82 of that Treaty (prohibition on abuse of a dominant position). (5) For the purpose of deciding under subsection (3) whether a person is unfit to be concerned in the management of a company the court— (a) must have regard to whether subsection (6) applies to him; (b) may have regard to his conduct as a director of a company in connection with any other breach of competition law; (c) must not have regard to the matters mentioned in Schedule 1. (6) This subsection applies to a person if as a director of the company— (a) his conduct contributed to the breach of competition law mentioned in subsection (2); (b) his conduct did not contribute to the breach but he had reasonable grounds to suspect that the conduct of the undertaking constituted the breach and he took no steps to prevent it; (c) he did not know but ought to have known that the conduct of the undertaking constituted the breach. (7) For the purposes of subsection (6)(a) it is immaterial whether the person knew that the conduct of the undertaking constituted the breach. (8) For the purposes of subsection (4)(a) or (c) references to the conduct of an undertaking are references to its conduct taken with the conduct of one or more other undertakings. (9) The maximum period of disqualification under this section is 15 years. (10) An application under this section for a disqualification order may be made by the OFT or by a specified regulator. (11) Section 60 of the Competition Act 1998 (c. 41) (consistent treatment of questions arising under United Kingdom and Commnunity law) applies in relation to any question arising by virtue of subsection (4)(a) or (b) above as it applies in relation to any question arising under Part 1 of that Act. (9B) (1) This section applies if— (a) the OFT or a specified regulator thinks that in relation to any person an undertaking which is a company of which he is a director has committed or is committing a breach of competition law, (b) the OFT or the specified regulator thinks that the conduct of the person as a director makes him unfit to be concerned in the management of a company, and (c) the person offers to give the OFT or the specified regulator (as the case may be) a disqualification undertaking. (2) The OFT or the specified regulator (as the case may be) may accept a disqualification undertaking from the person instead of applying for or proceeding with an application for a disqualification order. (3) A disqualification undertaking is an undertaking by a person that for the period specified in the undertaking he will not— (a) be a director of a company; (b) act as receiver of a company’s property; (c) in any way, whether directly or indirectly, be concerned or take part in the promotion, formation or management of a company; (d) act as an insolvency practitioner. (4) But a disqualification undertaking may provide that a prohibition falling within subsection (3)(a) to (c) does not apply if the person obtains the leave of the court. (5) The maximum period which may be specified in a disqualification undertaking is 15 years. (6) If a disqualification undertaking is accepted from a person who is already subject to a disqualification undertaking under this Act or to a disqualification order the periods specified in those undertakings or the undertaking and the order (as the case may be) run concurrently. (7) Subsections (4) to (8) of section 9A apply for the purposes of this section as they apply for the purposes of that section but in the application of subsection (5) of that section the reference to the court must be construed as a reference to the OFT or a specified regulator (as the case may be). (9C) (1) If the OFT or a specified regulator has reasonable grounds for suspecting that a breach of competition law has occurred it or he (as the case may be) may carry out an investigation for the purpose of deciding whether to make an application under section 9A for a disqualification order. (2) For the purposes of such an investigation sections 26 to 30 of the Competition Act 1998 (c. 41) apply to the OFT and the specified regulators as they apply to the OFT for the purposes of an investigation under section 25 of that Act. (3) Subsection (4) applies if as a result of an investigation under this section the OFT or a specified regulator proposes to apply under section 9A for a disqualification order. (4) Before making the application the OFT or regulator (as the case may be) must— (a) give notice to the person likely to be affected by the application, and (b) give that person an opportunity to make representations. (9D) (1) The Secretary of State may make regulations for the purpose of co-ordinating the performance of functions under sections 9A to 9C (relevant functions) which are exercisable concurrently by two or more persons. (2) Section 54(5) to (7) of the Competition Act 1998 (c. 41) applies to regulations made under this section as it applies to regulations made under that section and for that purpose in that section— (a) references to Part 1 functions must be read as references to relevant functions; (b) references to a regulator must be read as references to a specified regulator; (c) a competent person also includes any of the specified regulators. (3) The power to make regulations under this section must be exercised by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament. (4) Such a statutory instrument may— (a) contain such incidental, supplemental, consequential and transitional provision as the Secretary of State thinks appropriate; (b) make different provision for different cases. (9E) (1) This section applies for the purposes of sections 9A to 9D. (2) Each of the following is a specified regulator for the purposes of a breach of competition law in relation to a matter in respect of which he or it has a function— (a) the Director General of Telecommunications; (b) the Gas and Electricity Markets Authority; (c) the Director General of Water Services; (d) the Rail Regulator; (e) the Civil Aviation Authority. (3) The court is the High Court or (in Scotland) the Court of Session. (4) Conduct includes omission. (5) Director includes shadow director.

(3) In section 1(1) (general provision about disqualification orders) for “section 6” substitute “ sections 6 and 9A ”.

(4) In section 8A (variation etc of disqualification undertaking) after subsection (2) there is inserted the following subsection—

(2A) Subsection (2) does not apply to an application in the case of an undertaking given under section 9B, and in such a case on the hearing of the application whichever of the OFT or a specified regulator (within the meaning of section 9E) accepted the undertaking— (a) must appear and call the attention of the court to any matters which appear to it or him (as the case may be) to be relevant; (b) may give evidence or call witnesses.

(5) In section 8A for subsection (3) there is substituted—

(3) In this section “the court”— (a) in the case of an undertaking given under section 9B means the High Court or (in Scotland) the Court of Session; (b) in any other case has the same meaning as in section 7(2) or 8 (as the case may be).

(6) In section 16(3) for “the Secretary of State or the official receiver or the liquidator” substitute “ a person falling within subsection (4) ”.

(7) In section 16 after subsection (3) there is inserted the following subsection—

(4) The following fall within this subsection— (a) the Secretary of State; (b) the official receiver; (c) the OFT; (d) the liquidator; (e) a specified regulator (within the meaning of section 9E).

(8) In section 17 (applications for leave under an order or undertaking) after subsection (3) there is inserted the following subsection—

(3A) Where a person is subject to a disqualification undertaking accepted at any time under section 9B any application for leave for the purposes of section 9B(4) must be made to the High Court or (in Scotland) the Court of Session.

(9) In section 17(4) for “or 1A(1)(a)” substitute “ 1A(1)(a) or 9B(4) ”.

(10) In section 17 after subsection (5) there are inserted the following subsections—

(6) Subsection (5) does not apply to an application for leave for the purposes of section 1(1)(a) if the application for the disqualification order was made under section 9A. (7) In such a case and in the case of an application for leave for the purposes of section 9B(4) on the hearing of the application whichever of the OFT or a specified regulator (within the meaning of section 9E) applied for the order or accepted the undertaking (as the case may be)— (a) must appear and draw the attention of the court to any matters which appear to it or him (as the case may be) to be relevant; (b) may give evidence or call witnesses.

(11) In section 18 (register of disqualification orders and undertakings) for subsection (2A) substitute—

(2A) The Secretary of State must include in the register such particulars as he considers appropriate of— (a) disqualification undertakings accepted by him under section 7 or 8; (b) disqualification undertakings accepted by the OFT or a specified regulator under section 9B; (c) cases in which leave has been granted as mentioned in subsection (1)(d).

Miscellaneous

Super-complaints to regulators other than OFT

205

(1) The Secretary of State may by order provide that section 11 is to apply to complaints made to a specified regulator in relation to a market of a specified description as it applies to complaints made to the CMA, with such modifications as may be specified.

(2) An order under this section—

(a) shall be made by statutory instrument, and

(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(3) In this section—

“regulator” has the meaning given in section 54(1) of the 1998 Act; and

“specified” means specified in the order.

Power to modify Schedule 8

206

(1) The Secretary of State may by order made by statutory instrument modify Schedule 8.

(2) An order under this section may make—

(a) different provision for different cases or different purposes;

(b) such incidental, supplementary, consequential, transitory, transitional or saving provision as the Secretary of State considers appropriate.

(3) An order under this section may, in particular, modify that Schedule in its application by virtue of Part 3 of this Act, in its application by virtue of Part 4 of this Act, in its application by virtue of any other enactment (whether by virtue of Part 4 of this Act as applied by that enactment or otherwise) or in its application by virtue of every enactment that applies it.

(4) An order under this section as extended by subsection (2) may modify any enactment comprised in or made under this Act, or any other enactment.

(5) No order shall be made under this section unless a draft of it has been laid before, and approved by a resolution of, each House of Parliament.

(6) No modification of Schedule 8 in its application by virtue of Part 3 of this Act shall be made by an order under this section if the modification relates to a relevant merger situation or (as the case may be) a special merger situation which has been created before the coming into force of the order.

(7) No modification shall be made by an order under this section of Schedule 8 in its application in relation to references made under section 22, 33, 45 or 62 before the coming into force of the order.

(8) No modification shall be made by an order under this section of Schedule 8 in its application in relation to references made under section 131 or 132 before the coming into force of the order (including references made under section 131 as applied by another enactment).

(9) Before making an order under this section, the Secretary of State shall consult the CMA.

(10) Expressions used in this section which are also used in Part 3 of this Act have the same meaning in this section as in that Part.

Repeal of Schedule 4 to the 1998 Act

207

Section 3(1)(d) of and Schedule 4 to the 1998 Act (which provide for the exclusion from the Chapter 1 prohibition in cases involving designated professional rules) shall cease to have effect.

Repeal of Part 6 of Fair Trading Act 1973

208

Sections 78 to 80 of the 1973 Act (references to Commission other than monopoly and merger references) shall cease to have effect.

Reform of Community competition law

209

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part 8 — Enforcement of certain consumer legislation

Introduction

Consumers

210

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Domestic infringements

211

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Community infringements

212

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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