Competition Act 1998 (c. 41)

(The document as of February, 2008)

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(a) beginning with the date on which notification was given; and

(b) ending with such date as may be specified in a notice in writing given to the applicant by the Director when the application has been determined.

(5) The date specified in a notice under subsection (4)(b) may not be earlier than the date on which the notice is given.

14 Notification for a decision

(1) A party to an agreement who applies for the agreement to be examined under this section must--

(a) notify the Director of the agreement; and

(b) apply to him for a decision.

(2) On an application under this section, the Director may make a decision as to--

(a) whether the Chapter I prohibition has been infringed; and

(b) if it has not been infringed, whether that is because of the effect of an exclusion or because the agreement is exempt from the prohibition.

(3) If an agreement is notified to the Director under this section, the application may include a request for the agreement to which it relates to be granted an individual exemption.

(4) If an agreement to which the prohibition applies has been notified to the Director under this section, no penalty is to be imposed under this Part in respect of any infringement of the prohibition by the agreement which occurs during the period--

(a) beginning with the date on which notification was given; and

(b) ending with such date as may be specified in a notice in writing given to the applicant by the Director when the application has been determined.

(5) The date specified in a notice under subsection (4)(b) may not be earlier than the date on which the notice is given.

15 Effect of guidance

(1) This section applies to an agreement if the Director has determined an application under section 13 by giving guidance that--

(a) the agreement is unlikely to infringe the Chapter I prohibition, regardless of whether or not it is exempt;

(b) the agreement is likely to be exempt under--

(i) a block exemption;

(ii) a parallel exemption; or

(iii) a section 11 exemption; or

(2) The Director is to take no further action under this Part with respect to an agreement to which this section applies, unless--

(a) he has reasonable grounds for believing that there has been a material change of circumstance since he gave his guidance;

(b) he has a reasonable suspicion that the information on which he based his guidance was incomplete, false or misleading in a material particular;

(d) a complaint about the agreement has been made to him by a person who is not a party to the agreement.

(3) No penalty may be imposed under this Part in respect of any infringement of the Chapter I prohibition by an agreement to which this section applies.

(4) But the Director may remove the immunity given by subsection (3) if--

(a) he takes action under this Part with respect to the agreement in one of the circumstances mentioned in subsection (2);

(b) he considers it likely that the agreement will infringe the prohibition; and

(c) he gives notice in writing to the party on whose application the guidance was given that he is removing the immunity as from the date specified in his notice.

(5) If the Director has a reasonable suspicion that information--

(a) on which he based his guidance, and

(b) which was provided to him by a party to the agreement,

was incomplete, false or misleading in a material particular, the date specified in a notice under subsection (4)(c) may be earlier than the date on which the notice is given.

16 Effect of a decision that the Chapter I prohibition has not been infringed

(1) This section applies to an agreement if the Director has determined an application under section 14 by making a decision that the agreement has not infringed the Chapter I prohibition.

(2) The Director is to take no further action under this Part with respect to the agreement unless--

(a) he has reasonable grounds for believing that there has been a material change of circumstance since he gave his decision; or

(b) he has a reasonable suspicion that the information on which he based his decision was incomplete, false or misleading in a material particular.

(3) No penalty may be imposed under this Part in respect of any infringement of the Chapter I prohibition by an agreement to which this section applies.

(4) But the Director may remove the immunity given by subsection (3) if--

(a) he takes action under this Part with respect to the agreement in one of the circumstances mentioned in subsection (2);

(b) he considers that it is likely that the agreement will infringe the prohibition; and

(c) he gives notice in writing to the party on whose application the decision was made that he is removing the immunity as from the date specified in his notice.

(5) If the Director has a reasonable suspicion that information--

(a) on which he based his decision, and

(b) which was provided to him by a party to the agreement,

was incomplete, false or misleading in a material particular, the date specified in a notice under subsection (4)(c) may be earlier than the date on which the notice is given.

Chapter II Abuse of Dominant Position

Introduction

17 Enactments replaced

Sections 2 to 10 of the [1980 c. 21.] Competition Act 1980 (control of anti-competitive practices) shall cease to have effect.

The prohibition

18 Abuse of dominant position

(1) Subject to section 19, any conduct on the part of one or more undertakings which amounts to the abuse of a dominant position in a market is prohibited if it may affect trade within the United Kingdom.

(2) Conduct may, in particular, constitute such an abuse if it consists in--

(a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;

(b) limiting production, markets or technical development to the prejudice of consumers;

(c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;

(d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of the contracts.

(3) In this section--

"dominant position" means a dominant position within the United Kingdom; and
"the United Kingdom" means the United Kingdom or any part of it.

(4) The prohibition imposed by subsection (1) is referred to in this Act as "the Chapter II prohibition".

Excluded cases

19 Excluded cases

(1) The Chapter II prohibition does not apply in any of the cases in which it is excluded by or as a result of--

(a) Schedule 1 (mergers and concentrations); or

(b) Schedule 3 (general exclusions).

(2) The Secretary of State may at any time by order amend Schedule 1, with respect to the Chapter II prohibition, by--

(a) providing for one or more additional exclusions; or

(b) amending or removing any provision (whether or not it has been added by an order under this subsection).

(3) The Secretary of State may at any time by order amend paragraph 8 of Schedule 3 with respect to the Chapter II prohibition.

(4) Schedule 3 also gives the Secretary of State power to provide that the Chapter II prohibition is not to apply in certain circumstances.

Notification

20 Requests for Director to consider conduct

(1) Sections 21 and 22 provide for conduct of a person which that person thinks may infringe the Chapter II prohibition to be considered by the Director on the application of that person.

(2) Schedule 6 provides for the procedure to be followed--

(a) by any person making an application, and

(b) by the Director, in considering an application.

21 Notification for guidance

(1) A person who applies for conduct to be considered under this section must--

(a) notify the Director of it; and

(b) apply to him for guidance.

(2) On an application under this section, the Director may give the applicant guidance as to whether or not, in his view, the conduct is likely to infringe the Chapter II prohibition.

22 Notification for a decision

(1) A person who applies for conduct to be considered under this section must--

(a) notify the Director of it; and

(b) apply to him for a decision.

(2) On an application under this section, the Director may make a decision as to--

(a) whether the Chapter II prohibition has been infringed; and

(b) if it has not been infringed, whether that is because of the effect of an exclusion.

23 Effect of guidance

(1) This section applies to conduct if the Director has determined an application under section 21 by giving guidance that the conduct is unlikely to infringe the Chapter II prohibition.

(2) The Director is to take no further action under this Part with respect to the conduct to which this section applies, unless--

(a) he has reasonable grounds for believing that there has been a material change of circumstance since he gave his guidance;

(b) he has a reasonable suspicion that the information on which he based his guidance was incomplete, false or misleading in a material particular; or

(3) No penalty may be imposed under this Part in respect of any infringement of the Chapter II prohibition by conduct to which this section applies.

(4) But the Director may remove the immunity given by subsection (3) if--

(a) he takes action under this Part with respect to the conduct in one of the circumstances mentioned in subsection (2);

(b) he considers that it is likely that the conduct will infringe the prohibition; and

(c) he gives notice in writing to the undertaking on whose application the guidance was given that he is removing the immunity as from the date specified in his notice.

(5) If the Director has a reasonable suspicion that information--

(a) on which he based his guidance, and

(b) which was provided to him by an undertaking engaging in the conduct,

was incomplete, false or misleading in a material particular, the date specified in a notice under subsection (4)(c) may be earlier than the date on which the notice is given.

24 Effect of a decision that the Chapter II prohibition has not been infringed

(1) This section applies to conduct if the Director has determined an application under section 22 by making a decision that the conduct has not infringed the Chapter II prohibition.

(2) The Director is to take no further action under this Part with respect to the conduct unless--

(a) he has reasonable grounds for believing that there has been a material change of circumstance since he gave his decision; or

(b) he has a reasonable suspicion that the information on which he based his decision was incomplete, false or misleading in a material particular.

(3) No penalty may be imposed under this Part in respect of any infringement of the Chapter II prohibition by conduct to which this section applies.

(4) But the Director may remove the immunity given by subsection (3) if--

(a) he takes action under this Part with respect to the conduct in one of the circumstances mentioned in subsection (2);

(b) he considers that it is likely that the conduct will infringe the prohibition; and

(c) he gives notice in writing to the undertaking on whose application the decision was made that he is removing the immunity as from the date specified in his notice.

(5) If the Director has a reasonable suspicion that information--

(a) on which he based his decision, and

(b) which was provided to him by an undertaking engaging in the conduct,

was incomplete, false or misleading in a material particular, the date specified in a notice under subsection (4)(c) may be earlier than the date on which the notice is given.

Chapter III Investigation and Enforcement

Investigations

25 Director's power to investigate

The Director may conduct an investigation if there are reasonable grounds for suspecting--

(a) that the Chapter I prohibition has been infringed; or

(b) that the Chapter II prohibition has been infringed.

26 Powers when conducting investigations

(1) For the purposes of an investigation under section 25, the Director may require any person to produce to him a specified document, or to provide him with specified information, which he considers relates to any matter relevant to the investigation.

(2) The power conferred by subsection (1) is to be exercised by a notice in writing.

(3) A notice under subsection (2) must indicate--

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

(b) the nature of the offences created by sections 42 to 44.

(4) In subsection (1) "specified" means--

(a) specified, or described, in the notice; or

(b) falling within a category which is specified, or described, in the notice.

(5) The Director may also specify in the notice--

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

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

(6) The power under this section to require a person to produce a document includes power--

(a) if the document is produced--

(i) to take copies of it or extracts from it;

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

(b) if the document is not produced, to require him to state, to the best of his knowledge and belief, where it is.

27 Power to enter premises without a warrant

(1) Any officer of the Director who is authorised in writing by the Director to do so ("an investigating officer") may enter any premises in connection with an investigation under section 25.

(2) No investigating officer is to enter any premises in the exercise of his powers under this section unless he has given to the occupier of the premises a written notice which--

(a) gives at least two working days' notice of the intended entry;

(b) indicates the subject matter and purpose of the investigation; and

(3) Subsection (2) does not apply--

(a) if the Director has a reasonable suspicion that the premises are, or have been, occupied by--

(i) a party to an agreement which he is investigating under section 25(a); or

(ii) an undertaking the conduct of which he is investigating under section 25(b); or

(b) if the investigating officer has taken all such steps as are reasonably practicable to give notice but has not been able to do so.

(4) In a case falling within subsection (3), the power of entry conferred by subsection (1) is to be exercised by the investigating officer on production of--

(a) evidence of his authorisation; and

(b) a document containing the information referred to in subsection (2)(b) and (c).

(5) An investigating officer entering any premises under this section may--

(a) take with him such equipment as appears to him to be necessary;

(b) require any person on the premises--

(i) to produce any document which he considers relates to any matter relevant to the investigation; and

(ii) if the document is produced, to provide an explanation of it;

(d) take copies of, or extracts from, any document which is produced;

(e) require any information which is held in a computer and is accessible from the premises and which the investigating officer considers relates to any matter relevant to the investigation, to be produced in a form--

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

(ii) in which it is visible and legible.

28 Power to enter premises under a warrant

(1) On an application made by the Director to the court in accordance with rules of court, a judge may issue a warrant if he is satisfied that--

(a) there are reasonable grounds for suspecting that there are on any premises documents--

(i) the production of which has been required under section 26 or 27; and

(ii) which have not been produced as required;

(b) there are reasonable grounds for suspecting that--

(i) there are on any premises documents which the Director has power under section 26 to require to be produced; and

(ii) if the documents were required to be produced, they would not be produced but would be concealed, removed, tampered with or destroyed; or

(c) an investigating officer has attempted to enter premises in the exercise of his powers under section 27 but has been unable to do so and that there are reasonable grounds for suspecting that there are on the premises documents the production of which could have been required under that section.

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

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

(b) to search the premises and take copies of, or extracts from, any document appearing to be of a kind in respect of which the application under subsection (1) was granted ("the relevant kind");

(i) such action appears to be necessary for preserving the documents or preventing interference with them; or

(ii) it is not reasonably practicable to take copies of the documents on the premises;

(d) to take any other steps which appear to be necessary for the purpose mentioned in paragraph (c)(i);

(e) 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;

(f) to require any information which is held in a computer and is accessible from the premises and which the named officer considers relates to any matter relevant to the investigation, to be produced in a form--

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

(ii) in which it is visible and legible.

(3) If, in the case of a warrant under subsection (1)(b), the judge is satisfied that it is reasonable to suspect that there are also on the premises other documents relating to the investigation concerned, the warrant shall also authorise action mentioned in subsection (2) to be taken in relation to any such document.

(4) Any person entering premises by virtue of a warrant under this section may take with him such equipment as appears to him to be necessary.

(5) On leaving any premises which he has entered by virtue of a warrant under this section, the named officer must, if the premises are unoccupied or the occupier is temporarily absent, leave them as effectively secured as he found them.

(6) A warrant under this section continues in force until the end of the period of one month beginning with the day on which it is issued.

(7) Any document of which possession is taken under subsection (2)(c) may be retained for a period of three months.

29 Entry of premises under warrant: supplementary

(1) A warrant issued under section 28 must indicate--

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

(b) the nature of the offences created by sections 42 to 44.

(2) The powers conferred by section 28 are to be exercised on production of a warrant issued under that section.

(3) If there is no one at the premises when the named officer proposes to execute such a warrant he must, before executing it--

(a) take such steps as are reasonable in all the circumstances to inform the occupier of the intended entry; and

(b) if the occupier is informed, afford him or his legal or other representative a reasonable opportunity to be present when the warrant is executed.

(4) If the named officer is unable to inform the occupier of the intended entry he must, when executing the warrant, leave a copy of it in a prominent place on the premises.

(5) In this section--

"named officer" means the officer named in the warrant; and
"occupier", in relation to any premises, means a person whom the named officer reasonably believes is the occupier of those premises.

30 Privileged communications

(1) A person shall not be required, under any provision of this Part, to produce or disclose a privileged communication.

(2) "Privileged communication" means a communication--

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

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

which in proceedings in the High Court would be protected from disclosure on grounds of legal professional privilege.

(3) In the application of this section to Scotland--

(a) references to the High Court are to be read as references to the Court of Session; and

(b) the reference to legal professional privilege is to be read as a reference to confidentiality of communications.

31 Decisions following an investigation

(1) Subsection (2) applies if, as the result of an investigation conducted under section 25, the Director proposes to make--

(a) a decision that the Chapter I prohibition has been infringed, or

(b) a decision that the Chapter II prohibition has been infringed.

(2) Before making the decision, the Director must--

(a) give written notice to the person (or persons) likely to be affected by the proposed decision; and

(b) give that person (or those persons) an opportunity to make representations.

Enforcement

32 Directions in relation to agreements

(1) If the Director has made a decision that an agreement infringes the Chapter I prohibition, he may give to such person or persons as he considers appropriate such directions as he considers appropriate to bring the infringement to an end.

(2) Subsection (1) applies whether the Director's decision is made on his own initiative or on an application made to him under this Part.

(3) A direction under this section may, in particular, include provision--

(a) requiring the parties to the agreement to modify the agreement; or

(b) requiring them to terminate the agreement.

(4) A direction under this section must be given in writing.

33 Directions in relation to conduct

(1) If the Director has made a decision that conduct infringes the Chapter II prohibition, he may give to such person or persons as he considers appropriate such directions as he considers appropriate to bring the infringement to an end.

(2) Subsection (1) applies whether the Director's decision is made on his own initiative or on an application made to him under this Part.

(3) A direction under this section may, in particular, include provision--

(a) requiring the person concerned to modify the conduct in question; or

(b) requiring him to cease that conduct.

(4) A direction under this section must be given in writing.

34 Enforcement of directions

(1) If a person fails, without reasonable excuse, to comply with a direction under section 32 or 33, the Director may apply to the court for an order--

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

(b) if the direction related to anything to be done in the management or administration of an undertaking, requiring the undertaking or any of its officers to do it.

(2) An order of the court under subsection (1) may provide for all of the costs of, or incidental to, the application for the order to be borne by--

(a) the person in default; or

(b) any officer of an undertaking who is responsible for the default.

(3) In the application of subsection (2) to Scotland, the reference to "costs" is to be read as a reference to "expenses".

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