Part IU.K. Competition

Chapter VU.K. Miscellaneous

Vertical agreements and land agreementsU.K.

50 Vertical agreements and land agreements.U.K.

(1)The Secretary of State may by order provide for any provision of this Part to apply in relation to—

(a)vertical agreements, or

(b)land agreements,

with such modifications as may be prescribed.

(2)An order may, in particular, provide for exclusions or exemptions, or otherwise provide for prescribed provisions not to apply, in relation to—

(a)vertical agreements, or land agreements, in general; or

(b)vertical agreements, or land agreements, of any prescribed description.

(3)An order may empower the [F1OFT] to give directions to the effect that in prescribed circumstances an exclusion, exemption or modification is not to apply (or is to apply in a particular way) in relation to an individual agreement.

(4)Subsections (2) and (3) are not to be read as limiting the powers conferred by section 71.

(5)In this section—

• “land agreement” and “vertical agreement” have such meaning as may be prescribed; and

• “prescribed” means prescribed by an order.

[F2OFT’s] rules, guidance and feesU.K.

51 Rules.U.K.

(1)The [F3OFT] may make such rules about procedural and other matters in connection with the carrying into effect of the provisions of this Part as [F3it] considers appropriate.

(2)Schedule 9 makes further provision about rules made under this section but is not to be taken as restricting the [F4OFT] powers under this section.

(3)If the [F5OFT] is preparing rules under this section [F5it] must consult such persons as he considers appropriate.

(4)If the proposed rules relate to a matter in respect of which a regulator exercises concurrent jurisdiction, those consulted must include that regulator.

(5)No rule made by the [F6OFT] is to come into operation until it has been approved by an order made by the Secretary of State.

(6)The Secretary of State may approve any rule made by the [F6OFT]—

(a)in the form in which it is submitted; or

(b)subject to such modifications as he considers appropriate.

(7)If the Secretary of State proposes to approve a rule subject to modifications he must inform the [F6OFT] of the proposed modifications and take into account any comments made by the [F6OFT].

(8)Subsections (5) to (7) apply also to any alteration of the rules made by the [F6OFT].

(9)The Secretary of State may, after consulting the [F6OFT], by order vary or revoke any rules made under this section.

(10)If the Secretary of State considers that rules should be made under this section with respect to a particular matter he may direct the [F7OFT] to exercise [F7its] powers under this section and make rules about that matter.

52 Advice and information.U.K.

(1)As soon as is reasonably practicable after the passing of this Act, the Director must prepare and publish general advice and information about—

(a)the application of the Chapter I prohibition and the Chapter II prohibition, and

(b)the enforcement of those prohibitions.

[F8(1A)As soon as is reasonably practicable after 1st May 2004, the OFT must prepare and publish general advice and information about—

(a)the application of the prohibitions in Article 81(1) and Article 82; and

(b)the enforcement by it of those prohibitions.]

(2)The [F9OFT] may at any time publish revised, or new, advice or information.

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

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

(b)indicating how the [F9OFT] expects such provisions to operate.

(4)Advice (or information) published by virtue of subsection (3)(b) may include advice (or information) about the factors which the [F10OFT] may take into account in considering whether, and if so how, to exercise a power conferred on [F10it] by Chapter I, II or III.

(5)Any advice or information published by the [F11OFT] under this section is to be published in such form and in such manner as [F11it] considers appropriate.

(6)If the [F12OFT] is preparing any advice or information under this section [F12it] must consult such persons as he considers appropriate.

(7)If the proposed advice or information relates to a matter in respect of which a regulator exercises concurrent jurisdiction, those consulted must include that regulator.

(8)In preparing any advice or information under this section about a matter in respect of which he may exercise functions under this Part, a regulator must consult—

(a)the [F13OFT];

(b)the other regulators; and

(c)such other persons as he considers appropriate.

53 Fees.U.K.

[F14(1)The [F15OFT] may charge fees, of specified amounts, in connection with the exercise by [F15it] of specified functions under this Part.

(2)Rules may, in particular, provide—

(a)for the amount of any fee to be calculated by reference to matters which may include—

(i)the turnover of any party to an agreement (determined in such manner as may be specified);

(ii)the turnover of a person whose conduct the [F15OFT] is to consider (determined in that way);

(b)for different amounts to be specified in connection with different functions;

(c)for the repayment by the [F15OFT] of the whole or part of a fee in specified circumstances;

(d)that an application or notice is not to be regarded as duly made or given unless the appropriate fee is paid.

(3)In this section—

(a)“rules” means rules made by the [F15OFT] under section 51; and

(b)“specified” means specified in rules.]

RegulatorsU.K.

54 Regulators.U.K.

(1)In this Part “regulator” means [F16—

[F17(a)the Office of Communications;]

(b)the Gas and Electricity Markets Authority;

(c)the Director General of Electricity Supply for Northern Ireland;

(d)the Director General of Water Services;

(e)the Rail Regulator;

(f)the Director General of Gas for Northern Ireland; and

(g)the Civil Aviation Authority.]

(2)Parts II and III of Schedule 10 provide for functions of the [F18OFT] under this Part to be exercisable concurrently by regulators.

(3)Parts IV and V of Schedule 10 make minor and consequential amendments in connection with the regulators’ competition functions.

(4)The Secretary of State may make regulations for the purpose of co-ordinating the performance of functions under this Part (“Part I functions”) which are exercisable concurrently by two or more competent persons as a result of [F19any enactment (including any subordinate legislation) whenever passed or made].

(5)The regulations may, in particular, make provision—

(a)as to the procedure to be followed by competent persons when determining who is to exercise Part I functions in a particular case;

(b)as to the steps which must be taken before a competent person exercises, in a particular case, such Part I functions as may be prescribed;

(c)as to the procedure for determining, in a particular case, questions arising as to which competent person is to exercise Part I functions in respect of the case;

(d)for Part I functions in a particular case to be exercised jointly—

(i)by the [F18OFT] and one or more regulators, or

(ii)by two or more regulators,

and as to the procedure to be followed in such cases;

(e)as to the circumstances in which the exercise by a competent person of such Part I functions as may be prescribed is to preclude the exercise of such functions by another such person;

(f)for cases in respect of which Part I functions are being, or have been, exercised by a competent person to be transferred to another such person;

(g)for the person (“A”) exercising Part I functions in a particular case—

(i)to appoint another competent person (“B”) to exercise Part I functions on A’s behalf in relation to the case; or

(ii)to appoint officers of B (with B’s consent) to act as officers of A in relation to the case;

(h)for notification as to who is exercising Part I functions in respect of a particular case.

(6)Provision made by virtue of subsection (5)(c) may provide for questions to be referred to and determined by the Secretary of State or by such other person as may be prescribed.

(7)“Competent person” means the [F18OFT] or any of the regulators.

[F20(8)In this section, “subordinate legislation” has the same meaning as in section 21(1) of the Interpretation Act 1978 (c 30) and includes an instrument made under—

(a)an Act of the Scottish Parliament;

(b)Northern Ireland legislation.]

Confidentiality and immunity from defamationU.K.

F2155 General restrictions on disclosure of information.U.K.

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

F2156 Director and Secretary of State to have regard to certain matters in relation to the disclosure of information.U.K.

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

57 Defamation.U.K.

For the purposes of the law relating to defamation, absolute privilege attaches to any advice, guidance, notice or direction given, or decision made, by the [F22OFT] in the exercise of any of [F22its] functions under this Part.

Findings of fact by [F23OFT] U.K.

58 Findings of fact by [F24OFT].U.K.

(1)Unless the court directs otherwise [F25or the [F24OFT] has decided to take further action in accordance with section 16(2) or 24(2)], [F26OFT’s] finding which is relevant to an issue arising in Part I proceedings is binding on the parties if—

(a)the time for bringing an appeal [F27under section 46 or 47] in respect of the finding has expired and the relevant party has not brought such an appeal; or

(b)the decision of [F28the Tribunal] on such an appeal has confirmed the finding.

(2)In this section—

• [F29“an OFT’s finding” means a finding of fact made by the OFT in the course of conducting an investigation;]

• [F30“Part 1 proceedings” means proceedings brought otherwise than by the OFT—

  (a)

  in respect of an alleged infringement of the Chapter I prohibition or of the Chapter II prohibition; or

  (b)

  in respect of an alleged infringement of the prohibitions in Article 81(1) or Article 82;]

• “relevant party” means—

  (a)

  in relation to the Chapter I prohibition [F31or the prohibition in Article 81(1)], a party to the agreement which is alleged to have infringed the prohibition; and

  (b)

  in relation to the Chapter II prohibition [F32or the prohibition in Article 82], the undertaking whose conduct is alleged to have infringed the prohibition.

(3)Rules of court may make provision in respect of assistance to be given by the [F24OFT] to the court in Part I proceedings.

[F33Findings of infringementsU.K.

58A Findings of infringementsU.K.

(1)This section applies to proceedings before the court in which damages or any other sum of money is claimed in respect of an infringement of—

(a)the Chapter I prohibition;

(b)the Chapter II prohibition;

(c)the prohibition in Article 81(1) of the Treaty;

(d)the prohibition in Article 82 of the Treaty.

(2)In such proceedings, the court is bound by a decision mentioned in subsection (3) once any period specified in subsection (4) which relates to the decision has elapsed.

(3)The decisions are—

(a)a decision of the OFT that the Chapter I prohibition or the Chapter II prohibition has been infringed;

(b)a decision of the OFT that the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed;

(c)a decision of the Tribunal (on an appeal from a decision of the OFT) that the Chapter I prohibition or the Chapter II prohibition has been infringed, or that the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed.

(4)The periods mentioned in subsection (2) are—

(a)in the case of a decision of the OFT, the period during which an appeal may be made to the Tribunal under section 46 or 47 or the EC Competition Law (Articles 84 and 85) Enforcement Regulations 2001 (S.I. 2001/2916);

(b)in the case of a decision of the Tribunal mentioned in subsection (3)(c), the period during which a further appeal may be made under section 49 or under those Regulations;

(c)in the case of any decision which is the subject of a further appeal, the period during which an appeal may be made to the House of Lords from a decision on the further appeal;

and, where any appeal mentioned in paragraph (a), (b) or (c) is made, the period specified in that paragraph includes the period before the appeal is determined.]

Interpretation and governing principlesU.K.

59 [F34Interpretation of Part 1].U.K.

(1)In this Part—

• [F35"agreement" is to be read with section 2(5) and (6);]

• F36...

• [F37“Article 81(1)” means Article 81(1) of the Treaty;]

• [F37“Article 81(3)” means Article 81(3) of the Treaty;]

• [F38“Article 82” means Article 82 of the Treaty;]

• “block exemption” has the meaning given in section 6(4);

• “block exemption order” has the meaning given in section 6(2);

• “the Chapter I prohibition” has the meaning given in section 2(8);

• “the Chapter II prohibition” has the meaning given in section 18(4);

• “the Commission” (except in relation to the Competition Commission) means the European Commission;

• “the Council” means the Council of the European Union;

• “the court”, except in sections 58[F39, 58A] and 60 and the expression “European Court”, means—

  (a)

  in England and Wales, the High Court;

  (b)

  in Scotland, the Court of Session; and

  (c)

  in Northern Ireland, the High Court;

• F40...

• “document” includes information recorded in any form;

• “the EEA Agreement” means the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as it has effect for the time being;

• “the European Court” means the Court of Justice of the European Communities and includes the Court of First Instance;

• [F41“the EC Competition Regulation” means Council Regulation (EC) No. 1/2003 of 16th December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty;]

• [F42“individual exemption” has the meaning given in section 4(2);]

• “information” includes estimates and forecasts;

• “investigating officer” has the meaning given in section 27(1);

• [F43“investigation” means an investigation under section 25;]

• “Minister of the Crown” has the same meaning as in the Ministers of the M1Crown Act 1975;

• [F44“OFCOM” means the Office of Communications;]

• “officer”, in relation to a body corporate, includes a director, manager or secretary and, in relation to a partnership in Scotland, includes a partner;

• [F45“ the OFT” means the Office of Fair Trading;]

• “parallel exemption” has the meaning given in section 10(3);

• “person”, in addition to the meaning given by the M2Interpretation Act 1978, includes any undertaking;

• [F46“premises” includes any land or means of transport;]

• “prescribed” means prescribed by regulations made by the Secretary of State;

• “regulator” has the meaning given by section 54;

• “section 11 exemption” has the meaning given in section 11(3); and

• “the Treaty” means the treaty establishing the European Community.

• [F47“ the Tribunal” means the Competition Appeal Tribunal;

• “Tribunal rules” means rules under section 15 of the Enterprise Act 2002.]

• [F48“working day” means a day which is not—

  (a)

  Saturday,

  (b)

  Sunday,

  (c)

  Christmas Day,

  (d)

  Good Friday, or

  (e)

  a day which is a bank holiday under the Banking and Financial Dealings Act 1971 (c. 80) in any part of the United Kingdom.]

(2)The fact that to a limited extent the Chapter I prohibition does not apply to an agreement, because of an exclusion provided by or under this Part or any other enactment, does not require those provisions of the agreement to which the exclusion relates to be disregarded when considering whether the agreement infringes the prohibition for other reasons.

(3)For the purposes of this Part, the power to require information, in relation to information recorded otherwise than in a legible form, includes power to require a copy of it in a legible form.

(4)Any power conferred on the [F49OFT] by this Part to require information includes power to require any document which [F49it] believes may contain that information.

60 Principles to be applied in determining questions.U.K.

(1)The purpose of this section is to ensure that so far as is possible (having regard to any relevant differences between the provisions concerned), questions arising under this Part in relation to competition within the United Kingdom are dealt with in a manner which is consistent with the treatment of corresponding questions arising in Community law in relation to competition within the Community.

(2)At any time when the court determines a question arising under this Part, it must act (so far as is compatible with the provisions of this Part and whether or not it would otherwise be required to do so) with a view to securing that there is no inconsistency between—

(a)the principles applied, and decision reached, by the court in determining that question; and

(b)the principles laid down by the Treaty and the European Court, and any relevant decision of that Court, as applicable at that time in determining any corresponding question arising in Community law.

(3)The court must, in addition, have regard to any relevant decision or statement of the Commission.

(4)Subsections (2) and (3) also apply to—

(a)the [F50OFT]; and

(b)any person acting on behalf of the [F50OFT], in connection with any matter arising under this Part.

(5)In subsections (2) and (3), “court” means any court or tribunal.

(6)In subsections (2)(b) and (3), “decision” includes a decision as to—

(a)the interpretation of any provision of Community law;

(b)the civil liability of an undertaking for harm caused by its infringement of Community law.