The EC Competition Law (Articles 84 and 85)Enforcement Regulations 2001

Made: 15th August 2001

Laid before Parliament: 16th August 2001

Coming into force: 17th August 2001

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Citation, commencement and extent

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Interpretation

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Commencement of investigations by the Director

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Exemptions

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Cancellation etc. of exemptions

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Notification in relation to agreements

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Notification for a decision in relation to agreements

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Effect of a decision that the prohibition in Article 81(1) has not been infringed

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Notification in relation to conduct

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Notification for a decision in relation to conduct

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Effect of a decision that the prohibition in Article 82 has not been infringed

11

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Powers when conducting investigations

12

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Power to enter premises without a warrant

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Powers to enter premises under a warrant

14

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Entry of premises under warrant: supplementary

15

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Privileged communications

16

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Decisions following an investigation

17

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Directions in relation to agreements

18

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Directions in relation to conduct

19

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Enforcement of Directions

20

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Interim measures

21

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Offences

22

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Destroying or falsifying documents

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False or misleading information

24

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Appeals

25

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Third party appeals

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Appeal tribunals

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Appeals on point of law etc.

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General restrictions on disclosure of information

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Director to have regard to certain matters in relation to the disclosure of information

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Defamation

31

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Findings of fact by the Director

32

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Offences by bodies corporate etc.

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Crown application

34

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Amendments to other enactments

35

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Past agreements and infringements

36

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Revocation and transitional provision

37

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SCHEDULE 1

Form of application

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• (1) An application under regulation 7 for an agreement to be examined, or under regulation 10 for conduct to be considered, shall consist of:

• (a) Form ERN; and

• (b) the copies of Form ERN required by rule 3 below.

• (2) The documents referred to in sub-paragraphs (1)(a) and (b) above shall be submitted to the Director.

Joint applications

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Where a joint application is submitted, Form ERN shall be submitted to the Director by or on behalf of all the applicants, and a joint representative may be appointed as authorised to act on behalf of some or all of the applicants for the purposes of these rules.

Copies

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• (1) Two copies of Form ERN, in addition to the original, shall be submitted to the Director.

• (2) Supporting documents submitted as part of Form ERN shall be either originals or true copies, and the applicant shall certify that each copy is a true copy of the original.

Content of application

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• (1) The information submitted as Form ERN shall, subject to paragraph (3) below, be correct and complete.

• (2) If the applicant considers that the Director would find any part of the information contained in the application to be confidential, in the sense given to that word by sub-paragraph (1)(c) of rule 21 below, he shall set out that part of the information in a separate annex to the application marked “confidential information” and provide a written explanation as to why he considers that the Director should treat it as such.

• (3) The Director may, by giving notice in writing to the applicant, dispense with the obligation to submit any particular information, including any supporting document, forming part of Form ERN, if he considers that such information or document is unnecessary for the examination of the agreement, or the consideration of the conduct, which is the subject of the application.

• (4) Where the applicant knows of material changes in the information contained in the application he shall without delay communicate those changes to the Director.

Date of application

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• (1) Except where paragraph (3) below applies, an application is made (and notification for the purposes of regulations 7 or 10, whichever is applicable, is given) on the date on which Form ERN is received by the Director.

• (2) The Director shall acknowledge receipt of an application by giving notice in writing to the applicant without delay.

• (3) Where the Director finds that the information submitted as Form ERN is incomplete he shall, without delay and in any event within one month from the date on which that information was received by the Director, give notice in writing to the applicant of which information, by reference to the Annex hereto, is outstanding.

• (4) Where the Director has invoked paragraph (3) above he shall give notice in writing to the applicant of such time limit as the Director considers is appropriate for the outstanding information to be received by him.

• (5) Where the Director has invoked paragraph (3) above the application shall be made (and notification for the purposes of regulations 7 or 10, whichever is applicable, shall be given) on the date on which he receives the outstanding information.

• (6) If the Director has invoked paragraph (3) above and has not received the outstanding information by the date of expiry of the time limit notified to the applicant under paragraph (4) above, or of such further period, if any, as he considers appropriate, he shall return the information submitted as Form ERN to the applicant and shall inform him in writing that his application has not been made in accordance with this rule.

Notification of application to other parties

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• (1) An applicant who is a party to an agreement must take all reasonable steps to notify all other parties to the agreement of whom he is aware that an application has been made for a decision.

• (2) If the conduct to which an application relates is conduct of two or more persons, the applicant must take all reasonable steps to notify all of the other parties of whom he is aware that an application has been made for a decision.

• (3) Notification by an applicant under paragraphs (1) or (2) above shall be written and shall be given within seven working days from the date on which the applicant receives acknowledgement of receipt of his application by the Director; the applicant shall provide a copy of the notification to the Director without delay.

Public register

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• (1) The Director shall maintain a register in which there shall be entered, in respect of every application made under regulation 7 or 10, a summary of the nature and objectives of the agreement or conduct which is the subject of the application (as referred to in Part 4 of the Annex hereto) and an indication of the final outcome of the application.

• (2) The register shall be open to public inspection:

• (a) at the Office of Fair Trading, between 10.00 a.m. and 4.30 p.m. on every working day; and

• (b) on the Office of Fair Trading’s website on the Internet.

• (3) In determining an application under regulation 7 or 10, the Director must take into account any representations made to him by persons other than the applicant.

Consultation of public following applications

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• (1) On an application under regulation 7 for an agreement to be examined:

• (a) if the Director proposes to grant an exemption, whether or not subject to conditions or obligations, he shall consult the public; and

• (b) if the Director proposes to make a decision that the prohibition in Article 81(1) has not been infringed, he may consult the public.

• (2) If, on an application under regulation 10 for conduct to be considered, the Director proposes to make a decision that the prohibition in Article 82 has not been infringed, he may consult the public.

Investigations

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• (1) An officer shall grant a request of the occupier of premises entered by the officer (“the occupier”) to allow a reasonable time for the occupier’s legal adviser to arrive at the premises before the investigation continues, if the officer considers it reasonable in the circumstances to do so and if he is satisfied that such conditions as he considers it appropriate to impose in granting the occupier’s request are, or will be, complied with.

• (2) For the purposes of paragraph (1) above, “a reasonable time” means such period of time as the officer considers is reasonable in the circumstances.

• (3) A person required by the Director under regulation 12(6)(a)(ii) to provide an explanation of a document may be accompanied by a legal adviser.

Proposed infringement and conditional exemption decisions

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• (1) If the Director proposes to make a decision that the prohibition in Article 81(1) or the prohibition in Article 82 has been infringed he shall give written notice:

• (a) where an application has been made, to the applicant and, subject to rules 17 and 18 below, to those persons whom the applicant has identified in the application as being the other parties to the agreement, or the other persons, if any, who are engaged in the conduct, as the case may be, which the Director considers has led to the infringement; and

• (b) where no application has been made, subject to rules 17 and 18 below, to each person who the Director considers is a party to the agreement, or is engaged in the conduct, as the case may be, which the Director considers has led to the infringement.

• (2) If the Director proposes to grant an exemption subject to conditions or obligations, he shall give written notice to the applicant and, subject to rules 17 and 18 below, to those persons whom the applicant has identified in the application as being the other parties to the agreement to which the application relates.

• (3) A written notice given under paragraph (1) or (2) above shall state the facts on which the Director relies, the matters to which he has taken objection, the action he proposes and his reasons for it.

• (4) A written notice given under paragraph (1) or (2) above shall specify a period within which each person referred to in sub-paragraph (1)(a) or (b) or paragraph (2) above, whichever is applicable, may indicate to the Director any part of the information contained in the notice which he considers the Director would find to be confidential, in the sense given to that word by sub-paragraph (1)(c) of rule 21 below.

• (5) Subject to paragraph (6) below, the Director shall give each person referred to in sub-paragraph (1)(a) or (b) or paragraph (2) above, whichever is applicable, a reasonable opportunity to inspect the documents in the Director’s file relating to the proposed decision.

• (6) The Director may withhold any document:

• (a) to the extent that it contains information which a person has stated to the Director to be, and which the Director has found to be, confidential, in the sense given to that word by sub-paragraph (1)(c) of rule 21 below;

• (b) which is, in the opinion of the Director, otherwise confidential; or

• (c) which is internal, in the sense given to that word by sub-paragraph (1)(e) of rule 21 below.

• (7) Subject to rules 17 and 18 below, the Director shall give each person referred to in sub-paragraph (1)(a) or (b) or paragraph (2) above, whichever is applicable, written notice of the period within which that person may make written representations to him on the information referred to in paragraph (3) above.

• (8) The Director shall give each person referred to in sub-paragraph (1)(a) or (b) or paragraph (2) above, whichever is applicable, a reasonable opportunity to make oral representations to him on the information referred to in paragraph (3) above.

Notice of decision

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• (1) If the Director has made a decision as to whether or not an agreement has infringed the prohibition in Article 81(1), or as to whether or not conduct has infringed the prohibition in Article 82, he shall, without delay:

• (a) give written notice of the decision:

• (i) where the decision was made following an application, to the applicant and, subject to rules 17 and 18(2) below, to those persons whom the applicant has identified in the application as being the other parties to the agreement, or the other persons, if any, who are engaged in the conduct, as the case may be; and

• (ii) where no application has been made, subject to rules 17 and 18(2) below, to each person who the Director considers is a party to the agreement, or is engaged in the conduct, as the case may be,

stating in the decision the facts on which he bases it and his reasons for making it; and

• (b) publish the decision.

• (2) Where the Director determines an application for a decision by exercising his discretion not to give a decision, he shall give written notice of that fact to:

• (a) the applicant; and

• (b) subject to rules 17 and 18 below, those persons whom the applicant has identified in the application as being the other parties to the agreement, or the other persons, if any, who are engaged in the conduct, as the case may be.

Further action after a decision

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Directions

13

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Interim measures

14

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Application for extension of exemption

15

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Cancellation etc. of exemption

16

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Associations of undertakings

17

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Time limits and giving notices

18

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Confidential third party information

19

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Third party appeals

20

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Interpretation and supplemental

21

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SCHEDULE 2 — APPEALS

Interpretation

1

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General procedure

2

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Decisions of the tribunal

3

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4

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5

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Signed

Alan Johnson — Minister of State for the Regions and Employment Relations, — Department of Trade and Industry — 15th August 2001

Explanatory note

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Footnotes

[^f00001]: S.I. 1996/1912.

[^f00002]: 1972 c. 68.

[^f00003]: 1998 c. 41.

[^f00004]: 1978 c. 30.

[^f00005]: S.I. 1996/2199.

[^f00006]: References in these Regulations to Articles of the Treaty are to Articles as renumbered by the Treaty signed at Amsterdam on 2nd October 1997 amending the Treaty on European Union, the Treaties establishing the European Communities and certain related Acts.

[^f00007]: 1973 c. 41.

[^f00008]: 1980 c. 21.