Competition Act 1998 (c. 41)

(The document as of February, 2008)

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Regulators

54 Regulators

(1) In this Part "regulator" means any person mentioned in paragraphs (a) to (g) of paragraph 1 of Schedule 10.

(2) Parts II and III of Schedule 10 provide for functions of the Director 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 any provision made by Part II or III of Schedule 10.

(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 Director 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 Director or any of the regulators.

Confidentiality and immunity from defamation

55 General restrictions on disclosure of information

(1) No information which--

(a) has been obtained under or as a result of any provision of this Part, and

(b) relates to the affairs of any individual or to any particular business of an undertaking,

is to be disclosed during the lifetime of that individual or while that business continues to be carried on, unless the condition mentioned in subsection (2) is satisfied.

(2) The condition is that consent to the disclosure has been obtained from--

(a) the person from whom the information was initially obtained under or as a result of any provision of this Part (if the identity of that person is known); and

(b) if different--

(i) the individual to whose affairs the information relates, or

(ii) the person for the time being carrying on the business to which the information relates.

(3) Subsection (1) does not apply to a disclosure of information--

(a) made for the purpose of--

(i) facilitating the performance of any relevant functions of a designated person;

(ii) facilitating the performance of any functions of the Commission in respect of Community law about competition;

(iii) facilitating the performance by the Comptroller and Auditor General of any of his functions;

(iv) criminal proceedings in any part of the United Kingdom;

(b) made with a view to the institution of, or otherwise for the purposes of, civil proceedings brought under or in connection with this Part;

(c) made in connection with the investigation of any criminal offence triable in the United Kingdom or in any part of the United Kingdom; or

(d) which is required to meet a Community obligation.

(4) In subsection (3) "relevant functions" and "designated person" have the meaning given in Schedule 11.

(5) Subsection (1) also does not apply to a disclosure of information made for the purpose of facilitating the performance of specified functions of any specified person.

(6) In subsection (5) "specified" means specified in an order made by the Secretary of State.

(7) If information is disclosed to the public in circumstances in which the disclosure does not contravene subsection (1), that subsection does not prevent its further disclosure by any person.

(8) A person who contravenes this section is guilty of an offence and liable--

(a) on summary conviction, to a fine not exceeding the statutory maximum; or

(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.

56 Director and Secretary of State to have regard to certain matters in relation to the disclosure of information

(1) This section applies if the Secretary of State or the Director is considering whether to disclose any information acquired by him under, or as a result of, any provision of this Part.

(2) He must have regard to the need for excluding, so far as is practicable, information the disclosure of which would in his opinion be contrary to the public interest.

(3) He must also have regard to--

(a) the need for excluding, so far as is practicable--

(i) commercial information the disclosure of which would, or might, in his opinion, significantly harm the legitimate business interests of the undertaking to which it relates, or

(ii) information relating to the private affairs of an individual the disclosure of which would, or might, in his opinion, significantly harm his interests; and

(b) the extent to which the disclosure is necessary for the purposes for which the Secretary of State or the Director is proposing to make the disclosure.

57 Defamation

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 Director in the exercise of any of his functions under this Part.

Findings of fact by Director

58 Findings of fact by Director

(1) Unless the court directs otherwise or the Director has decided to take further action in accordance with section 16(2) or 24(2), a Director'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 in respect of the finding has expired and the relevant party has not brought such an appeal; or

(b) the decision of an appeal tribunal on such an appeal has confirmed the finding.

(2) In this section--

"a Director's finding" means a finding of fact made by the Director in the course of--
(a)
determining an application for a decision under section 14 or 22, or
(b)
conducting an investigation under section 25;
"Part I proceedings" means proceedings--
(a)
in respect of an alleged infringement of the Chapter I prohibition or of the Chapter II prohibition; but
(b)
which are brought otherwise than by the Director;
"relevant party" means--
(a)
in relation to the Chapter I prohibition, a party to the agreement which is alleged to have infringed the prohibition; and
(b)
in relation to the Chapter II prohibition, 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 Director to the court in Part I proceedings.

Interpretation and governing principles

59 Interpretation

(1) In this Part--

"appeal tribunal" means an appeal tribunal established in accordance with the provisions of Part III of Schedule 7 for the purpose of hearing an appeal under section 46 or 47;
"Article 85" means Article 85 of the Treaty;
"Article 86" means Article 86 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 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;
"the Director" means the Director General of Fair Trading;
"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;
"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);
"Minister of the Crown" has the same meaning as in the Ministers of the [1975 c. 26.] Crown Act 1975;
"officer", in relation to a body corporate, includes a director, manager or secretary and, in relation to a partnership in Scotland, includes a partner;
"parallel exemption" has the meaning given in section 10(3);
"person", in addition to the meaning given by the [1978 c. 30.] Interpretation Act 1978, includes any undertaking;
"premises" does not include domestic premises unless--
(a)
they are also used in connection with the affairs of an undertaking, or
(b)
documents relating to the affairs of an undertaking are kept there,

but does include any vehicle;
"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.

(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 Director by this Part to require information includes power to require any document which he believes may contain that information.

60 Principles to be applied in determining questions

(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 Director; and

(b) any person acting on behalf of the Director, 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.

Part II Investigations in relation to Articles 85 and 86

61 Introduction

(1) In this Part--

"Article 85" and "Article 86" have the same meaning as in Part I;
"authorised officer", in relation to the Director, means an officer to whom an authorisation has been given under subsection (2);
"the Commission" means the European Commission;
"the Director" means the Director General of Fair Trading;
"Commission investigation" means an investigation ordered by a decision of the Commission under a prescribed provision of Community law relating to Article 85 or 86;
"Director's investigation" means an investigation conducted by the Director at the request of the Commission under a prescribed provision of Community law relating to Article 85 or 86;
"Director's special investigation" means a Director's investigation conducted at the request of the Commission in connection with a Commission investigation;
"prescribed" means prescribed by order made by the Secretary of State;
"premises" means--
(a)
in relation to a Commission investigation, any premises, land or means of transport which an official of the Commission has power to enter in the course of the investigation; and
(b)
in relation to a Director's investigation, any premises, land or means of transport which an official of the Commission would have power to enter if the investigation were being conducted by the Commission.

(2) For the purposes of a Director's investigation, an officer of the Director to whom an authorisation has been given has the powers of an official authorised by the Commission in connection with a Commission investigation under the relevant provision.

(3) "Authorisation" means an authorisation given in writing by the Director which--

(a) identifies the officer;

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

(c) draws attention to any penalties which a person may incur in connection with the investigation under the relevant provision of Community law.

62 Power to enter premises: Commission investigations

(1) A judge of the High Court may issue a warrant if satisfied, on an application made to the High Court in accordance with rules of court by the Director, that a Commission investigation is being, or is likely to be, obstructed.

(2) A Commission investigation is being obstructed if--

(a) an official of the Commission ("the Commission official"), exercising his power in accordance with the provision under which the investigation is being conducted, has attempted to enter premises but has been unable to do so; and

(b) there are reasonable grounds for suspecting that there are books or records on the premises which the Commission official has power to examine.

(3) A Commission investigation is also being obstructed if there are reasonable grounds for suspecting that there are books or records on the premises--

(a) the production of which has been required by an official of the Commission exercising his power in accordance with the provision under which the investigation is being conducted; and

(b) which have not been produced as required.

(4) A Commission investigation is likely to be obstructed if--

(a) an official of the Commission ("the Commission official") is authorised for the purpose of the investigation;

(b) there are reasonable grounds for suspecting that there are books or records on the premises which the Commission official has power to examine; and

(c) there are also reasonable grounds for suspecting that, if the Commission official attempted to exercise his power to examine any of the books or records, they would not be produced but would be concealed, removed, tampered with or destroyed.

(5) A warrant under this section shall authorise--

(a) a named officer of the Director,

(b) any other of his officers whom he has authorised in writing to accompany the named officer, and

to enter the premises specified in the warrant, and search for books and records which the official has power to examine, using such force as is reasonably necessary for the purpose.

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

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

(8) 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.

(9) In the application of this section to Scotland, references to the High Court are to be read as references to the Court of Session.

63 Power to enter premises: Director's special investigations

(1) A judge of the High Court may issue a warrant if satisfied, on an application made to the High Court in accordance with rules of court by the Director, that a Director's special investigation is being, or is likely to be, obstructed.

(2) A Director's special investigation is being obstructed if--

(a) an authorised officer of the Director has attempted to enter premises but has been unable to do so;

(b) the officer has produced his authorisation to the undertaking, or association of undertakings, concerned; and

(c) there are reasonable grounds for suspecting that there are books or records on the premises which the officer has power to examine.

(3) A Director's special investigation is also being obstructed if--

(a) there are reasonable grounds for suspecting that there are books or records on the premises which an authorised officer of the Director has power to examine;

(b) the officer has produced his authorisation to the undertaking, or association of undertakings, and has required production of the books or records; and

(4) A Director's special investigation is likely to be obstructed if--

(a) there are reasonable grounds for suspecting that there are books or records on the premises which an authorised officer of the Director has power to examine; and

(b) there are also reasonable grounds for suspecting that, if the officer attempted to exercise his power to examine any of the books or records, they would not be produced but would be concealed, removed, tampered with or destroyed.

(5) A warrant under this section shall authorise--

(a) a named authorised officer of the Director,

(b) any other authorised officer accompanying the named officer, and

to enter the premises specified in the warrant, and search for books and records which the authorised officer has power to examine, using such force as is reasonably necessary for the purpose.

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

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

(8) 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.

(9) In the application of this section to Scotland, references to the High Court are to be read as references to the Court of Session.

64 Entry of premises under sections 62 and 63: supplementary

(1) A warrant issued under section 62 or 63 must indicate--

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

(b) the nature of the offence created by section 65.

(2) The powers conferred by section 62 or 63 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.

65 Offences

(1) A person is guilty of an offence if he intentionally obstructs any person in the exercise of his powers under a warrant issued under section 62 or 63.

(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.

Part III Monopolies

66 Monopoly investigations: general

(1) Section 44 of the [1973 c. 41.] Fair Trading Act 1973 (power of the Director to require information about monopoly situations) is amended as follows.

(2) In subsection (1), for the words after paragraph (b) substitute-- " the Director may exercise the powers conferred by subsection (2) below for the purpose of assisting him in determining whether to take either of the following decisions with regard to that situation. "

(3) After subsection (1) insert--

" (1A) Those decisions are--

(a) whether to make a monopoly reference with respect to the existence or possible existence of the situation;

(b) whether, instead, to make a proposal under section 56A below for the Secretary of State to accept undertakings. "

(4) For subsection (2) substitute--

" (2) In the circumstances and for the purpose mentioned in subsection (1) above, the Director may--

(a) require any person within subsection (3) below to produce to the Director, at a specified time and place--

(i) any specified documents, or

(ii) any document which falls within a specified category,

which are in his custody or under his control and which are relevant;

(b) require any person within subsection (3) below who is carrying on a business to give the Director specified estimates, forecasts, returns, or other information, and specify the time at which and the form and manner in which the estimates, forecasts, returns or information are to be given;

(i) require any person on the premises to produce any documents on the premises which are in his custody or under his control and which are relevant;

(ii) require any person on the premises to give the Director such explanation of the documents as he may require.

(3) A person is within this subsection if--

(a) he produces goods of the description in question in the United Kingdom;

(b) he supplies goods or (as the case may be) services of the description in question in the United Kingdom; or

(4) The power to impose a requirement under subsection (2)(a) or (b) above is to be exercised by notice in writing served on the person on whom the requirement is imposed; and "specified" in those provisions means specified or otherwise described in the notice, and "specify" is to be read accordingly.

(5) The power under subsection (2)(a) above to require a person ("the person notified") 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 the person notified, 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 the person notified to state, to the best of his knowledge and belief, where it is.

(6) Nothing in this section confers power to compel any person--

(a) to produce any document which he could not be compelled to produce in civil proceedings before the High Court or, in Scotland, the Court of Session; or

(b) in complying with any requirement for the giving of information, to give any information which he could not be compelled to give in evidence in such proceedings.

(7) No person has to comply with a requirement imposed under subsection (2) above by a person acting under an authorisation under paragraph 7 of Schedule 1 to this Act unless evidence of the authorisation has, if required, been produced.

(8) For the purposes of subsection (2) above--

(a) a document is relevant if--

(i) it is relevant to a decision mentioned in subsection (1A) above; and

(ii) the powers conferred by this section are exercised in relation to the document for the purpose of assisting the Director in determining whether to take that decision;

(b) "document" includes information recorded in any form; and

(c) in relation to information recorded otherwise than in legible form, the power to require its production includes power to require production of it in legible form, so far as the means to do so are within the custody or under the control of the person on whom the requirement is imposed. "

(5) The amendments made by this section and section 67 have effect in relation to sectoral regulators in accordance with paragraph 1 of Schedule 10.

67 Offences

(1) Section 46 of the [1973 c. 41.] Fair Trading Act 1973 is amended as follows.

(2) Omit subsections (1) and (2).

(3) At the end insert--

" (4) Any person who refuses or wilfully neglects to comply with a requirement imposed under section 44(2) above is guilty of an offence and liable--

(a) on summary conviction, to a fine not exceeding the prescribed sum, or

(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.

(5) If a person is charged with an offence under subsection (4) 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.

(6) If a person is charged with an offence under subsection (4) in respect of a requirement--

(a) to provide an explanation of a document, or

(b) 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.

(7) A person who intentionally obstructs the Director in the exercise of his powers under section 44 is guilty of an offence and liable--

(a) on summary conviction, to a fine not exceeding the prescribed sum;

(b) on conviction on indictment, to a fine.

(8) A person who wilfully alters, suppresses or destroys any document which he has been required to produce under section 44(2) is guilty of an offence and liable--

(a) on summary conviction, to a fine not exceeding the prescribed sum;

(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both. "

68 Services relating to use of land

In section 137 of the Fair Trading Act 1973, after subsection (3) insert--

" (3A) The Secretary of State may by order made by statutory instrument--

(a) provide that "the supply of services" in the provisions of this Act is to include, or to cease to include, any activity specified in the order which consists in, or in making arrangements in connection with, permitting the use of land; and

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