Competition Act 1998 (c. 41)

(The document as of February, 2008)

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(a) examine, certify and report on each statement received by him as a result of this paragraph; and

(b) lay copies of each statement and of his report before each House of Parliament.

(4) In this paragraph "financial year" means the period beginning with the date on which the Commission is established and ending with March 31st next, and each successive period of twelve months.

Status

13 (1) The Commission is not to be regarded as the servant or agent of the Crown or as enjoying any status, privilege or immunity of the Crown.

(2) The Commission's property is not to be regarded as property of, or held on behalf of, the Crown.

Part II Performance of the Commission's General Functions

Interpretation

14 In this Part of this Schedule "group" means a group selected under paragraph 15.

Discharge of certain functions by groups

15 (1) Except where sub-paragraph (7) gives the Chairman power to act on his own, any general function of the Commission must be performed through a group selected for the purpose by the Chairman.

(2) The group must consist of at least three persons one of whom may be the Chairman.

(3) In selecting the members of the group, the Chairman must comply with any requirement as to its constitution imposed by any enactment applying to specialist panel members.

(4) If the functions to be performed through the group relate to a newspaper merger reference, the group must, subject to sub-paragraph (5), consist of such reporting panel members as the Chairman may select.

(5) The Secretary of State may appoint one, two or three persons from the panel maintained under paragraph 22 to be members and, if he does so, the group--

(a) must include that member or those members; and

(b) if there are three such members, may (if the Chairman so decides) consist entirely of those members.

(6) Subject to sub-paragraphs (2) to (5), a group must consist of reporting panel members or specialist panel members selected by the Chairman.

(7) While a group is being constituted to perform a particular general function of the Commission, the Chairman may--

(a) take such steps (falling within that general function) as he considers appropriate to facilitate the work of the group when it has been constituted; or

(b) exercise the power conferred by section 75(5) of the 1973 Act (setting aside references).

Chairmen of groups

16 The Chairman must appoint one of the members of a group to act as the chairman of the group.

Replacement of member of group

17 (1) If, during the proceedings of a group--

(a) a member of the group ceases to be a member of the Commission,

(b) the Chairman is satisfied that a member of the group will be unable for a substantial period to perform his duties as a member of the group, or

(c) it appears to the Chairman that because of a particular interest of a member of the group it is inappropriate for him to remain in the group,

the Chairman may appoint a replacement.

(2) The Chairman may also at any time appoint any reporting panel member to be an additional member of a group.

Attendance of other members

18 (1) At the invitation of the chairman of a group, any reporting panel member who is not a member of the group may attend meetings or otherwise take part in the proceedings of the group.

(2) But any person attending in response to such an invitation may not--

(a) vote in any proceedings of the group; or

(b) have a statement of his dissent from a conclusion of the group included in a report made by them.

(3) Nothing in sub-paragraph (1) is to be taken to prevent a group, or a member of a group, from consulting any member of the Commission with respect to any matter or question with which the group is concerned.

Procedure

19 (1) Subject to any special or general directions given by the Secretary of State, each group may determine its own procedure.

(2) Each group may, in particular, determine its quorum and determine--

(a) the extent, if any, to which persons interested or claiming to be interested in the subject-matter of the reference are allowed--

(i) to be present or to be heard, either by themselves or by their representatives;

(ii) to cross-examine witnesses; or

(iii) otherwise to take part; and

(b) the extent, if any, to which sittings of the group are to be held in public.

(3) In determining its procedure a group must have regard to any guidance issued by the Chairman.

(4) Before issuing any guidance for the purposes of this paragraph the Chairman must consult the members of the Commission.

Effect of exercise of functions by group

20 (1) Subject to sub-paragraph (2), anything done by or in relation to a group in, or in connection with, the performance of functions to be performed by the group is to have the same effect as if done by or in relation to the Commission.

(2) For the purposes of--

(a) sections 56 and 73 of the 1973 Act,

(b) section 19A of the [1958 c. 47.] Agricultural Marketing Act 1958,

a conclusion contained in a report of a group is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group.

Casting votes

21 The chairman of a group is to have a casting vote on any question to be decided by the group.

Newspaper merger references

22 The Secretary of State must maintain a panel of persons whom he regards as suitable for selection as members of a group constituted in connection with a newspaper merger reference.

Part III Appeals

Interpretation

23 In this Part of this Schedule--

"panel of chairmen" means the panel appointed under paragraph 26; and
"tribunal" means an appeal tribunal constituted in accordance with paragraph 27.

Training of appeal panel members

24 The President must arrange such training for appeal panel members as he considers appropriate.

Acting President

25 If the President is absent or otherwise unable to act, the Secretary of State may appoint as acting president an appeal panel member who is qualified to act as chairman of a tribunal.

Panel of tribunal chairmen

26 (1) There is to be a panel of appeal panel members appointed by the Secretary of State for the purposes of providing chairmen of appeal tribunals established under this Part of this Schedule.

(2) A person is qualified for appointment to the panel of chairmen only if--

(a) he has a seven year general qualification within the meaning of section 71 of the [1990 c. 41.] Courts and Legal Services Act 1990,

(b) he is an advocate or solicitor in Scotland of at least seven years' standing, or

(i) a member of the Bar of Northern Ireland of at least seven years' standing, or

(ii) a solicitor of the Supreme Court of Northern Ireland of at least seven years' standing,

and appears to the Secretary of State to have appropriate experience and knowledge of competition law and practice.

Constitution of tribunals

27 (1) On receipt of a notice of appeal, the President must constitute an appeal tribunal to deal with the appeal.

(2) An appeal tribunal is to consist of--

(a) a chairman, who must be either the President or a person appointed by him to be chairman from the panel of chairmen; and

(b) two other appeal panel members appointed by the President.

Part IV Miscellaneous

Disqualification of members for House of Commons

28 In Part II of Schedule 1 to the [1975 c. 24.] House of Commons Disqualification Act 1975 (bodies of which all members are disqualified) insert at the appropriate place-- " The Competition Commission " .

Disqualification of members for Northern Ireland Assembly

29 In Part II of Schedule 1 to the [1975 c. 25.] Northern Ireland Assembly Disqualification Act 1975 (bodies of which all members are disqualified) insert at the appropriate place-- " The Competition Commission " .

Part V Transitional provisions

Interpretation

30 In this Part of this Schedule--

"commencement date" means the date on which section 45 comes into force; and
"MMC" means the Monopolies and Mergers Commission.

Chairman

31 (1) The person who is Chairman of the MMC immediately before the commencement date is on that date to become both a member of the Commission and its chairman as if he had been duly appointed under paragraphs 2(1)(b) and 3.

(2) He is to hold office as Chairman of the Commission for the remainder of the period for which he was appointed as Chairman of the MMC and on the terms on which he was so appointed.

Deputy chairmen

32 The persons who are deputy chairmen of the MMC immediately before the commencement date are on that date to become deputy chairmen of the Commission as if they had been duly appointed under paragraph 3(2).

Reporting panel members

33 (1) The persons who are members of the MMC immediately before the commencement date are on that date to become members of the Commission as if they had been duly appointed under paragraph 2(1)(b).

(2) Each of them is to hold office as a member for the remainder of the period for which he was appointed as a member of the MMC and on the terms on which he was so appointed.

Specialist panel members

34 (1) The persons who are members of the MMC immediately before the commencement date by virtue of appointments made under any of the enactments mentioned in paragraph 2(1)(d) are on that date to become members of the Commission as if they had been duly appointed to the Commission under the enactment in question.

(2) Each of them is to hold office as a member for such period and on such terms as the Secretary of State may determine.

Secretary

35 The person who is the secretary of the MMC immediately before the commencement date is on that date to become the secretary of the Commission as if duly appointed under paragraph 9, on the same terms and conditions.

Council

36 (1) The members who become deputy chairmen of the Commission under paragraph 32 are also to become members of the Council as if they had been duly appointed under paragraph 5(2)(c).

(2) Each of them is to hold office as a member of the Council for such period as the Secretary of State determines.

Sections 46(5) and 48(4).

SCHEDULE 8 Appeals

Part I General

Interpretation

1 In this Schedule--

"the chairman" means a person appointed as chairman of a tribunal in accordance with paragraph 27(2)(a) of Schedule 7;
"the President" means the President of the Competition Commission Appeal Tribunals appointed under paragraph 4 of Schedule 7;
"rules" means rules made by the Secretary of State under section 48;
"specified" means specified in rules;
"tribunal" means an appeal tribunal constituted in accordance with paragraph 27 of Schedule 7.

General procedure

2 (1) An appeal to the Competition Commission must be made by sending a notice of appeal to the Commission within the specified period.

(2) The notice of appeal must set out the grounds of appeal in sufficient detail to indicate--

(a) under which provision of this Act the appeal is brought;

(b) to what extent (if any) the appellant contends that the decision against, or with respect to which, the appeal is brought was based on an error of fact or was wrong in law; and

(c) to what extent (if any) the appellant is appealing against the Director's exercise of his discretion in making the disputed decision.

(3) The tribunal may give an appellant leave to amend the grounds of appeal identified in the notice of appeal.

Decisions of the tribunal

3 (1) The tribunal must determine the appeal on the merits by reference to the grounds of appeal set out in the notice of appeal.

(2) The tribunal may confirm or set aside the decision which is the subject of the appeal, or any part of it, and may--

(a) remit the matter to the Director,

(b) impose or revoke, or vary the amount of, a penalty,

(c) grant or cancel an individual exemption or vary any conditions or obligations imposed in relation to the exemption by the Director,

(d) give such directions, or take such other steps, as the Director could himself have given or taken, or

(e) make any other decision which the Director could himself have made.

(3) Any decision of the tribunal on an appeal has the same effect, and may be enforced in the same manner, as a decision of the Director.

(4) If the tribunal confirms the decision which is the subject of the appeal it may nevertheless set aside any finding of fact on which the decision was based.

4 (1) A decision of the tribunal may be taken by a majority.

(2) The decision must--

(a) state whether it was unanimous or taken by a majority; and

(b) be recorded in a document which--

(i) contains a statement of the reasons for the decision; and

(ii) is signed and dated by the chairman of the tribunal.

(3) When the tribunal is preparing the document mentioned in sub-paragraph (2)(b), section 56 is to apply to the tribunal as it applies to the Director.

(4) The President must make such arrangements for the publication of the tribunal's decision as he considers appropriate.

Part II Rules

Registrar of Appeal Tribunals

5 (1) Rules may provide for the appointment by the Competition Commission, with the approval of the Secretary of State, of a Registrar of Appeal Tribunals.

(2) The rules may, in particular--

(a) specify the qualifications for appointment as Registrar; and

(b) provide for specified functions relating to appeals to be exercised by the Registrar in specified circumstances.

Notice of appeal

6 Rules may make provision--

(a) as to the period within which appeals must be brought;

(b) as to the form of the notice of appeal and as to the information which must be given in the notice;

(d) with respect to acknowledgement of a notice of appeal.

Response to the appeal

7 Rules may provide for the tribunal to reject an appeal if--

(a) it considers that the notice of appeal reveals no valid ground of appeal; or

(b) it is satisfied that the appellant has habitually and persistently and without any reasonable ground--

(i) instituted vexatious proceedings, whether against the same person or against different persons; or

(ii) made vexatious applications in any proceedings.

Pre-hearing reviews and preliminary matters

8 (1) Rules may make provision--

(a) for the carrying-out by the tribunal of a preliminary consideration of proceedings (a "pre-hearing review"); and

(b) for enabling such powers to be exercised in connection with a pre-hearing review as may be specified.

(2) If rules make provision of the kind mentioned in sub-paragraph (1), they may also include--

(a) provision for security; and

(b) supplemental provision.

(3) In sub-paragraph (2) "provision for security" means provision authorising a tribunal carrying out a pre-hearing review under the rules, in specified circumstances, to make an order requiring a party to the proceedings, if he wishes to continue to participate in them, to pay a deposit of an amount not exceeding such sum--

(a) as may be specified; or

(b) as may be calculated in accordance with specified provisions.

(4) In sub-paragraph (2) "supplemental provision" means any provision as to--

(a) the manner in which the amount of such a deposit is to be determined;

(b) the consequences of non-payment of such a deposit; and

(i) refunded to the person who paid it; or

(ii) paid to another party to the proceedings.

Conduct of the hearing

9 (1) Rules may make provision--

(a) as to the manner in which appeals are to be conducted, including provision for any hearing to be held in private if the tribunal considers it appropriate because it may be considering information of a kind to which section 56 applies;

(b) as to the persons entitled to appear on behalf of the parties;

(c) for requiring persons to attend to give evidence and produce documents and for authorising the administration of oaths to witnesses;

(d) as to the evidence which may be required or admitted in proceedings before the tribunal and the extent to which it should be oral or written;

(e) allowing the tribunal to fix time limits with respect to any aspect of the proceedings before it and to extend any time limit (whether or not it has expired);

(f) for enabling the tribunal to refer a matter back to the Director if it appears to the tribunal that the matter has not been adequately investigated;

(g) for enabling the tribunal, on the application of any party to the proceedings before it or on its own initiative--

(i) in England and Wales or Northern Ireland, to order the disclosure between, or the production by, the parties of documents or classes of documents;

(ii) in Scotland, to order such recovery or inspection of documents as might be ordered by a sheriff;

(h) for the appointment of experts for the purposes of any proceedings before the tribunal;

(i) for the award of costs or expenses, including any allowances payable to persons in connection with their attendance before the tribunal;

(j) for taxing or otherwise settling any costs or expenses directed to be paid by the tribunal and for the enforcement of any such direction.

(2) A person who without reasonable excuse fails to comply with--

(a) any requirement imposed by virtue of sub-paragraph (1)(c), or

(b) any requirement with respect to the disclosure, production, recovery or inspection of documents which is imposed by virtue of sub-paragraph (1)(g),

is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Interest

10 (1) Rules may make provision--

(a) as to the circumstances in which the tribunal may order that interest is payable;

(b) for the manner in which and the periods by reference to which interest is to be calculated and paid.

(2) The rules may, in particular, provide that compound interest is to be payable if the tribunal--

(a) upholds a decision of the Director to impose a penalty, or

(b) does not reduce a penalty so imposed by more than a specified percentage,

but in such a case the rules may not provide that interest is to be payable in respect of any period before the date on which the appeal was brought.

Fees

11 (1) Rules may provide--

(a) for fees to be chargeable in respect of specified costs of proceedings before the tribunal;

(b) for the amount of such costs to be determined by the tribunal.

(2) Any sums received in consequence of rules under this paragraph are to be paid into the Consolidated Fund.

Withdrawing an appeal

12 Rules may make provision--

(a) that a party who has brought an appeal may not withdraw it without the leave of--

(i) the tribunal, or

(ii) in specified circumstances, the President or the Registrar;

(b) for the tribunal to grant leave to withdraw the appeal on such conditions as it considers appropriate;

(d) as to the effect of withdrawal of an appeal;

(e) as to any procedure to be followed if parties to proceedings on an appeal agree to settle.

Interim orders

13 (1) Rules may provide for the tribunal to make an order ("an interim order") granting, on an interim basis, any remedy which the tribunal would have power to grant in its final decision.

(2) An interim order may, in particular, suspend the effect of a decision made by the Director or vary the conditions or obligations attached to an exemption.

(3) Rules may also make provision giving the tribunal powers similar to those given to the Director by section 35.

Miscellaneous

14 Rules may make provision--

(a) for a person who is not a party to proceedings on an appeal to be joined in those proceedings;

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