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Competition Act 1998 (c. 41)(The document as of February, 2008) Page 3 Pages: P.1 | P.2 | P.3 | P.4 | P.5 | P.6 | P.7 | P.8 | P.9 | P.10 | P.11 | P.12 | P.13 | P.14 (3) In the application of subsection (2) to Scotland, the reference to "costs" is to be read as a reference to "expenses". 35 Interim measures(1) This section applies if the Director-- (a) has a reasonable suspicion that the Chapter I prohibition has been infringed, or (b) has a reasonable suspicion that the Chapter II prohibition has been infringed, but has not completed his investigation into the matter. (2) If the Director considers that it is necessary for him to act under this section as a matter of urgency for the purpose-- (a) of preventing serious, irreparable damage to a particular person or category of person, or (b) of protecting the public interest, he may give such directions as he considers appropriate for that purpose. (3) Before giving a direction under this section, the Director must-- (a) give written notice to the person (or persons) to whom he proposes to give the direction; and (b) give that person (or each of them) an opportunity to make representations. (4) A notice under subsection (3) must indicate the nature of the direction which the Director is proposing to give and his reasons for wishing to give it. (5) A direction given under this section has effect while subsection (1) applies, but may be replaced if the circumstances permit by a direction under section 32 or (as appropriate) section 33. (6) In the case of a suspected infringement of the Chapter I prohibition, sections 32(3) and 34 also apply to directions given under this section. (7) In the case of a suspected infringement of the Chapter II prohibition, sections 33(3) and 34 also apply to directions given under this section. 36 Penalty for infringing Chapter I or Chapter II prohibition(1) On making a decision that an agreement has infringed the Chapter I prohibition, the Director may require an undertaking which is a party to the agreement to pay him a penalty in respect of the infringement. (2) On making a decision that conduct has infringed the Chapter II prohibition, the Director may require the undertaking concerned to pay him a penalty in respect of the infringement. (3) The Director may impose a penalty on an undertaking under subsection (1) or (2) only if he is satisfied that the infringement has been committed intentionally or negligently by the undertaking. (4) Subsection (1) is subject to section 39 and does not apply if the Director is satisfied that the undertaking acted on the reasonable assumption that that section gave it immunity in respect of the agreement. (5) Subsection (2) is subject to section 40 and does not apply if the Director is satisfied that the undertaking acted on the reasonable assumption that that section gave it immunity in respect of the conduct. (6) Notice of a penalty under this section must-- (a) be in writing; and (b) specify the date before which the penalty is required to be paid. (7) The date specified must not be earlier than the end of the period within which an appeal against the notice may be brought under section 46. (8) No penalty fixed by the Director under this section may exceed 10% of the turnover of the undertaking (determined in accordance with such provisions as may be specified in an order made by the Secretary of State). (9) Any sums received by the Director under this section are to be paid into the Consolidated Fund. 37 Recovery of penalties(1) If the specified date in a penalty notice has passed and-- (a) the period during which an appeal against the imposition, or amount, of the penalty may be made has expired without an appeal having been made, or (b) such an appeal has been made and determined, the Director may recover from the undertaking, as a civil debt due to him, any amount payable under the penalty notice which remains outstanding. (2) In this section--
38 The appropriate level of a penalty(1) The Director must prepare and publish guidance as to the appropriate amount of any penalty under this Part. (2) The Director may at any time alter the guidance. (3) If the guidance is altered, the Director must publish it as altered. (4) No guidance is to be published under this section without the approval of the Secretary of State. (5) The Director may, after consulting the Secretary of State, choose how he publishes his guidance. (6) If the Director is preparing or altering guidance under this section he must consult such persons as he considers appropriate. (7) If the proposed guidance or alteration relates to a matter in respect of which a regulator exercises concurrent jurisdiction, those consulted must include that regulator. (8) When setting the amount of a penalty under this Part, the Director must have regard to the guidance for the time being in force under this section. (9) If a penalty or a fine has been imposed by the Commission, or by a court or other body in another Member State, in respect of an agreement or conduct, the Director, an appeal tribunal or the appropriate court must take that penalty or fine into account when setting the amount of a penalty under this Part in relation to that agreement or conduct. (10) In subsection (9) "the appropriate court" means-- (a) in relation to England and Wales, the Court of Appeal; (b) in relation to Scotland, the Court of Session; (c) in relation to Northern Ireland, the Court of Appeal in Northern Ireland; (d) the House of Lords. 39 Limited immunity for small agreements(1) In this section "small agreement" means an agreement-- (a) which falls within a category prescribed for the purposes of this section; but (b) is not a price fixing agreement. (2) The criteria by reference to which a category of agreement is prescribed may, in particular, include-- (a) the combined turnover of the parties to the agreement (determined in accordance with prescribed provisions); (b) the share of the market affected by the agreement (determined in that way). (3) A party to a small agreement is immune from the effect of section 36(1); but the Director may withdraw that immunity under subsection (4). (4) If the Director has investigated a small agreement, he may make a decision withdrawing the immunity given by subsection (3) if, as a result of his investigation, he considers that the agreement is likely to infringe the Chapter I prohibition. (5) The Director must give each of the parties in respect of which immunity is withdrawn written notice of his decision to withdraw the immunity. (6) A decision under subsection (4) takes effect on such date ("the withdrawal date") as may be specified in the decision. (7) The withdrawal date must be a date after the date on which the decision is made. (8) In determining the withdrawal date, the Director must have regard to the amount of time which the parties are likely to require in order to secure that there is no further infringement of the Chapter I prohibition with respect to the agreement. (9) In subsection (1) "price fixing agreement" means an agreement which has as its object or effect, or one of its objects or effects, restricting the freedom of a party to the agreement to determine the price to be charged (otherwise than as between that party and another party to the agreement) for the product, service or other matter to which the agreement relates. 40 Limited immunity in relation to the Chapter II prohibition(1) In this section "conduct of minor significance" means conduct which falls within a category prescribed for the purposes of this section. (2) The criteria by reference to which a category is prescribed may, in particular, include-- (a) the turnover of the person whose conduct it is (determined in accordance with prescribed provisions); (b) the share of the market affected by the conduct (determined in that way). (3) A person is immune from the effect of section 36(2) if his conduct is conduct of minor significance; but the Director may withdraw that immunity under subsection (4). (4) If the Director has investigated conduct of minor significance, he may make a decision withdrawing the immunity given by subsection (3) if, as a result of his investigation, he considers that the conduct is likely to infringe the Chapter II prohibition. (5) The Director must give the person, or persons, whose immunity has been withdrawn written notice of his decision to withdraw the immunity. (6) A decision under subsection (4) takes effect on such date ("the withdrawal date") as may be specified in the decision. (7) The withdrawal date must be a date after the date on which the decision is made. (8) In determining the withdrawal date, the Director must have regard to the amount of time which the person or persons affected are likely to require in order to secure that there is no further infringement of the Chapter II prohibition. 41 Agreements notified to the Commission(1) This section applies if a party to an agreement which may infringe the Chapter I prohibition has notified the agreement to the Commission for a decision as to whether an exemption will be granted under Article 85 with respect to the agreement. (2) A penalty may not be required to be paid under this Part in respect of any infringement of the Chapter I prohibition after notification but before the Commission determines the matter. (3) If the Commission withdraws the benefit of provisional immunity from penalties with respect to the agreement, subsection (2) ceases to apply as from the date on which that benefit is withdrawn. (4) The fact that an agreement has been notified to the Commission does not prevent the Director from investigating it under this Part. (5) In this section "provisional immunity from penalties" has such meaning as may be prescribed. Offences42 Offences(1) A person is guilty of an offence if he fails to comply with a requirement imposed on him under section 26, 27 or 28. (2) If a person is charged with an offence under subsection (1) in respect of a requirement to produce a document, it is a defence for him to prove-- (a) that the document was not in his possession or under his control; and (b) that it was not reasonably practicable for him to comply with the requirement. (3) If a person is charged with an offence under subsection (1) in respect of a requirement-- (a) to provide information, (b) to provide an explanation of a document, or (c) to state where a document is to be found, it is a defence for him to prove that he had a reasonable excuse for failing to comply with the requirement. (4) Failure to comply with a requirement imposed under section 26 or 27 is not an offence if the person imposing the requirement has failed to act in accordance with that section. (5) A person is guilty of an offence if he intentionally obstructs an officer acting in the exercise of his powers under section 27. (6) A person guilty of an offence under subsection (1) or (5) is liable-- (a) on summary conviction, to a fine not exceeding the statutory maximum; (b) on conviction on indictment, to a fine. (7) A person who intentionally obstructs an officer in the exercise of his powers under a warrant issued under section 28 is guilty of an offence and liable-- (a) on summary conviction, to a fine not exceeding the statutory maximum; (b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both. 43 Destroying or falsifying documents(1) A person is guilty of an offence if, having been required to produce a document under section 26, 27 or 28-- (a) he intentionally or recklessly destroys or otherwise disposes of it, falsifies it or conceals it, or (b) he causes or permits its destruction, disposal, falsification or concealment. (2) A person guilty of an offence under subsection (1) is liable-- (a) on summary conviction, to a fine not exceeding the statutory maximum; (b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both. 44 False or misleading information(1) If information is provided by a person to the Director in connection with any function of the Director under this Part, that person is guilty of an offence if-- (a) the information is false or misleading in a material particular, and (b) he knows that it is or is reckless as to whether it is. (2) A person who-- (a) provides any information to another person, knowing the information to be false or misleading in a material particular, or (b) recklessly provides any information to another person which is false or misleading in a material particular, knowing that the information is to be used for the purpose of providing information to the Director in connection with any of his functions under this Part, is guilty of an offence. (3) A person guilty of an offence under this section is liable-- (a) on summary conviction, to a fine not exceeding the statutory maximum; (b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both. Chapter IV The Competition Commission and AppealsThe Commission45 The Competition Commission(1) There is to be a body corporate known as the Competition Commission. (2) The Commission is to have such functions as are conferred on it by or as a result of this Act. (3) The Monopolies and Mergers Commission is dissolved and its functions are transferred to the Competition Commission. (4) In any enactment, instrument or other document, any reference to the Monopolies and Mergers Commission which has continuing effect is to be read as a reference to the Competition Commission. (5) The Secretary of State may by order make such consequential, supplemental and incidental provision as he considers appropriate in connection with-- (a) the dissolution of the Monopolies and Mergers Commission; and (b) the transfer of functions effected by subsection (3). (6) An order made under subsection (5) may, in particular, include provision-- (a) for the transfer of property, rights, obligations and liabilities and the continuation of proceedings, investigations and other matters; or (b) amending any enactment which makes provision with respect to the Monopolies and Mergers Commission or any of its functions. (7) Schedule 7 makes further provision about the Competition Commission. Appeals46 Appealable decisions(1) Any party to an agreement in respect of which the Director has made a decision may appeal to the Competition Commission against, or with respect to, the decision. (2) Any person in respect of whose conduct the Director has made a decision may appeal to the Competition Commission against, or with respect to, the decision. (3) In this section "decision" means a decision of the Director-- (a) as to whether the Chapter I prohibition has been infringed, (b) as to whether the Chapter II prohibition has been infringed, (c) as to whether to grant an individual exemption, (d) in respect of an individual exemption-- (i) as to whether to impose any condition or obligation under section 4(3)(a) or 5(1)(c), (ii) where such a condition or obligation has been imposed, as to the condition or obligation, (iii) as to the period fixed under section 4(3)(b), or (iv) as to the date fixed under section 4(5), (e) as to-- (i) whether to extend the period for which an individual exemption has effect, or (ii) the period of any such extension, (f) cancelling an exemption, (g) as to the imposition of any penalty under section 36 or as to the amount of any such penalty, (h) withdrawing or varying any of the decisions in paragraphs (a) to (f) following an application under section 47(1), and includes a direction given under section 32, 33 or 35 and such other decision as may be prescribed. (4) Except in the case of an appeal against the imposition, or the amount, of a penalty, the making of an appeal under this section does not suspend the effect of the decision to which the appeal relates. (5) Part I of Schedule 8 makes further provision about appeals. 47 Third party appeals(1) A person who does not fall within section 46(1) or (2) may apply to the Director asking him to withdraw or vary a decision ("the relevant decision") falling within paragraphs (a) to (f) of section 46(3) or such other decision as may be prescribed. (2) The application must-- (a) be made in writing, within such period as the Director may specify in rules under section 51; and (b) give the applicant's reasons for considering that the relevant decision should be withdrawn or (as the case may be) varied. (3) If the Director decides-- (a) that the applicant does not have a sufficient interest in the relevant decision, (b) that, in the case of an applicant claiming to represent persons who have such an interest, the applicant does not represent such persons, or (c) that the persons represented by the applicant do not have such an interest, he must notify the applicant of his decision. (4) If the Director, having considered the application, decides that it does not show sufficient reason why he should withdraw or vary the relevant decision, he must notify the applicant of his decision. (5) Otherwise, the Director must deal with the application in accordance with such procedure as may be specified in rules under section 51. (6) The applicant may appeal to the Competition Commission against a decision of the Director notified under subsection (3) or (4). (7) The making of an application does not suspend the effect of the relevant decision. 48 Appeal tribunals(1) Any appeal made to the Competition Commission under section 46 or 47 is to be determined by an appeal tribunal. (2) The Secretary of State may, after consulting the President of the Competition Commission Appeal Tribunals and such other persons as he considers appropriate, make rules with respect to appeals and appeal tribunals. (3) The rules may confer functions on the President. (4) Part II of Schedule 8 makes further provision about rules made under this section but is not to be taken as restricting the Secretary of State's powers under this section. 49 Appeals on point of law etc(1) An appeal lies-- (a) on a point of law arising from a decision of an appeal tribunal, or (b) from any decision of an appeal tribunal as to the amount of a penalty. (2) An appeal under this section may be made only-- (a) to the appropriate court; (b) with leave; and (c) at the instance of a party or at the instance of a person who has a sufficient interest in the matter. (3) Rules under section 48 may make provision for regulating or prescribing any matters incidental to or consequential upon an appeal under this section. (4) In subsection (2)--
Chapter V MiscellaneousVertical agreements and land agreements50 Vertical agreements and land agreements(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 Director 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--
Director's rules, guidance and fees51 Rules(1) The Director may make such rules about procedural and other matters in connection with the carrying into effect of the provisions of this Part as he considers appropriate. (2) Schedule 9 makes further provision about rules made under this section but is not to be taken as restricting the Director's powers under this section. (3) If the Director is preparing rules under this section he 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 Director 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 Director-- (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 Director of the proposed modifications and take into account any comments made by the Director. (8) Subsections (5) to (7) apply also to any alteration of the rules made by the Director. (9) The Secretary of State may, after consulting the Director, 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 Director to exercise his powers under this section and make rules about that matter. 52 Advice and information(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. (2) The Director 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 Director 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 Director may take into account in considering whether, and if so how, to exercise a power conferred on him by Chapter I, II or III. (5) Any advice or information published by the Director under this section is to be published in such form and in such manner as he considers appropriate. (6) If the Director is preparing any advice or information under this section he 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 Director; (b) the other regulators; and (c) such other persons as he considers appropriate. 53 Fees(1) The Director may charge fees, of specified amounts, in connection with the exercise by him 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 Director 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 Director 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 Director under section 51; and (b) "specified" means specified in rules. Pages: P.1 | P.2 | P.3 | P.4 | P.5 | P.6 | P.7 | P.8 | P.9 | P.10 | P.11 | P.12 | P.13 | P.14 -- Back --
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