Part 4Market Investigations

Chapter 4Supplementary

Other

179Review of decisions under Part 4

(1)Any person aggrieved by a decision of the OFT, the appropriate Minister, the Secretary of State or the Commission 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”—

(a)does not include a decision to impose a penalty under section 110(1) or (3) as applied by section 176; 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).

180Offences

(1)Sections 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.

(2)Section 117 shall, in its application by virtue of subsection (1) above, have effect as if references to the Secretary of State included references to the appropriate Minister so far as he is not the Secretary of State acting alone.

181Orders under Part 4

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

(2)Any power of the Secretary of State to make an order 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 136(9), 137(3), 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 137(3), 144(2), 158, 160 or 161, or under section 111(4) or (6) or 114(3)(b) or (4)(b) as applied by section 176, shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(5)No order shall be made by the Secretary of State under section 136(9) or 168(8), or section 128(6) as applied by section 183(2), unless a draft of it has been laid before, and approved by a resolution of, each House of Parliament.

(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 111(4) or (6) or 114(3)(b) or (4)(b) as applied by section 176 and an order made under section 128(6) as applied by section 183(2).

182Service of documents: Part 4

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

183Interpretation: Part 4

(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)

  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

  (b)

  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;

• “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 no intervention notice under section 139(1) has been given in relation to it—

(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 Commission has decided under section 138(2) neither to accept undertakings under section 159 nor to make an order under section 161; or

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

(b)where an intervention notice under section 139(1) has been given in relation to it—

(i)the period permitted by section 144 for the preparation of the report of the Commission under section 142 and for action to be taken in relation to it under section 143(1) 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 Commission has terminated under section 145(1) its investigation and the reference is finally determined under paragraph (a) above (disregarding the fact that the notice was given);

(iii)the report of the Commission has been prepared under section 142 and published under section 143(1) within the period permitted by section 144;

(iv)the intervention notice was revoked and the reference is finally determined under paragraph (a) above (disregarding the fact that the notice was given);

(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 and the reference is finally determined under paragraph (a) above (disregarding the fact that the notice was given);

(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 (disregarding the fact that the notice was given);

(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; or

(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.

(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), 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) or (vi).

(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 (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.

184Index of defined expressions: Part 4

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.