Competition Act 1998 (c. 41)

(The document as of February, 2008)

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

(b) for appeals to be consolidated on such terms as the tribunal thinks appropriate in such circumstances as may be specified.

Section 51(2).

SCHEDULE 9 Director's Rules

General

1 In this Schedule--

"application for guidance" means an application for guidance under section 13 or 21;
"application for a decision" means an application for a decision under section 14 or 22;
"guidance" means guidance given under section 13 or 21;
"rules" means rules made by the Director under section 51; and
"specified" means specified in rules.

Applications

2 Rules may make provision--

(a) as to the form and manner in which an application for guidance or an application for a decision must be made;

(b) for the procedure to be followed in dealing with the application;

(d) as to the documents and information which must be given to the Director in connection with the application;

(e) requiring the applicant to give such notice of the application, to such other persons, as may be specified;

(f) as to the consequences of a failure to comply with any rule made by virtue of sub-paragraph (e);

(g) as to the procedure to be followed when the application is subject to the concurrent jurisdiction of the Director and a regulator.

Provisional decisions

3 Rules may make provision as to the procedure to be followed by the Director when making a provisional decision under paragraph 3 of Schedule 5 or paragraph 3 of Schedule 6.

Guidance

4 Rules may make provision as to--

(a) the form and manner in which guidance is to be given;

(b) the procedure to be followed if--

(i) the Director takes further action with respect to an agreement after giving guidance that it is not likely to infringe the Chapter I prohibition; or

(ii) the Director takes further action with respect to conduct after giving guidance that it is not likely to infringe the Chapter II prohibition.

Decisions

5 (1) Rules may make provision as to--

(a) the form and manner in which notice of any decision is to be given;

(b) the person or persons to whom the notice is to be given;

(d) the procedure to be followed if--

(i) the Director takes further action with respect to an agreement after having decided that it does not infringe the Chapter I prohibition; or

(ii) the Director takes further action with respect to conduct after having decided that it does not infringe the Chapter II prohibition.

(2) In this paragraph "decision" means a decision of the Director (whether or not made on an application)--

(a) as to whether or not an agreement has infringed the Chapter I prohibition, or

(b) as to whether or not conduct has infringed the Chapter II prohibition,

and, in the case of an application for a decision under section 14 which includes a request for an individual exemption, includes a decision as to whether or not to grant the exemption.

Individual exemptions

6 Rules may make provision as to--

(a) the procedure to be followed by the Director when deciding whether, in accordance with section 5--

(i) to cancel an individual exemption that he has granted,

(ii) to vary or remove any of its conditions or obligations, or

(iii) to impose additional conditions or obligations;

(b) the form and manner in which notice of such a decision is to be given.

7 Rules may make provision as to--

(a) the form and manner in which an application under section 4(6) for the extension of an individual exemption is to be made;

(b) the circumstances in which the Director will consider such an application;

(d) the form and manner in which notice of such a decision is to be given.

Block exemptions

8 Rules may make provision as to--

(a) the form and manner in which notice of an agreement is to be given to the Director under subsection (1) of section 7;

(b) the procedure to be followed by the Director if he is acting under subsection (2) of that section;

Parallel exemptions

9 Rules may make provision as to--

(a) the circumstances in which the Director may--

(i) impose conditions or obligations in relation to a parallel exemption,

(ii) vary or remove any such conditions or obligations,

(iii) impose additional conditions or obligations, or

(iv) cancel the exemption;

(b) as to the procedure to be followed by the Director if he is acting under section 10(5);

(d) the circumstances in which an exemption may be cancelled with retrospective effect.

Section 11 exemptions

10 Rules may, with respect to any exemption provided by regulations made under section 11, make provision similar to that made with respect to parallel exemptions by section 10 or by rules under paragraph 9.

Directions withdrawing exclusions

11 Rules may make provision as to the factors which the Director may take into account when he is determining the date on which a direction given under paragraph 4(1) of Schedule 1 or paragraph 2(3) or 9(3) of Schedule 3 is to have effect.

Disclosure of information

12 (1) Rules may make provision as to the circumstances in which the Director is to be required, before disclosing information given to him by a third party in connection with the exercise of any of the Director's functions under Part I, to give notice, and an opportunity to make representations, to the third party.

(2) In relation to the agreement (or conduct) concerned, "third party" means a person who is not a party to the agreement (or who has not engaged in the conduct).

Applications under section 47

13 Rules may make provision as to--

(a) the period within which an application under section 47(1) must be made;

(b) the procedure to be followed by the Director in dealing with the application;

Enforcement

14 Rules may make provision as to the procedure to be followed when the Director takes action under any of sections 32 to 41 with respect to the enforcement of the provisions of this Part.

Sections 54 and 66(5).

SCHEDULE 10 Regulators

Part I Monopolies

1 The amendments of the [1973 c. 41.] Fair Trading Act 1973 made by sections 66 and 67 of this Act are to have effect, not only in relation to the jurisdiction of the Director under the provisions amended, but also in relation to the jurisdiction under those provisions of each of the following--

(a) the Director General of Telecommunications;

(b) the Director General of Electricity Supply;

(d) the Director General of Water Services;

(e) the Rail Regulator;

(f) the Director General of Gas Supply; and

(g) the Director General of Gas for Northern Ireland.

Part II The Prohibitions

Telecommunications

2 (1) In consequence of the repeal by this Act of provisions of the [1980 c. 21.] Competition Act 1980, the functions transferred by subsection (3) of section 50 of the [1984 c. 12.] Telecommunications Act 1984 (functions under 1973 and 1980 Acts) are no longer exercisable by the Director General of Telecommunications.

(2) Accordingly, that Act is amended as follows.

(3) In section 3 (general duties of Secretary of State and Director), in subsection (3)(b), for "section 50" substitute "section 50(1) or (2)".

(4) In section 3, after subsection (3A), insert--

" (3B) Subsections (1) and (2) above do not apply in relation to anything done by the Director in the exercise of functions assigned to him by section 50(3) below ("Competition Act functions").

(3C) The Director may nevertheless, when exercising any Competition Act function, have regard to any matter in respect of which a duty is imposed by subsection (1) or (2) above ("a general matter"), if it is a matter to which the Director General of Fair Trading could have regard when exercising that function; but that is not to be taken as implying that, in relation to any of the matters mentioned in subsection (3) or (3A) above, regard may not be had to any general matter. "

(5) Section 50 is amended as follows.

(6) For subsection (3) substitute--

" (3) The Director shall be entitled to exercise, concurrently with the Director General of Fair Trading, the functions of that Director under the provisions of Part I of the Competition Act 1998 (other than sections 38(1) to (6) and 51), so far as relating to--

(a) agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act, or

(b) conduct of the kind mentioned in section 18(1) of that Act,

which relate to commercial activities connected with telecommunications.

(3A) So far as necessary for the purposes of, or in connection with, the provisions of subsection (3) above, references in Part I of the Competition Act 1998 to the Director General of Fair Trading are to be read as including a reference to the Director (except in sections 38(1) to (6), 51, 52(6) and (8) and 54 of that Act and in any other provision of that Act where the context otherwise requires). "

(7) In subsection (4), omit paragraph (c) and the "and" immediately after it.

(8) In subsection (5), omit "or (3)".

(9) In subsection (6), for paragraph (b) substitute--

" (b) Part I of the Competition Act 1998 (other than sections 38(1) to (6) and 51), " .

(10) In subsection (7), omit "or the 1980 Act".

Gas

3 (1) In consequence of the repeal by this Act of provisions of the [1980 c. 21.] Competition Act 1980, the functions transferred by subsection (3) of section 36A of the [1986 c. 44.] Gas Act 1986 (functions with respect to competition) are no longer exercisable by the Director General of Gas Supply.

(2) Accordingly, that Act is amended as follows.

(3) In section 4 (general duties of Secretary of State and Director), after subsection (3), insert--

" (3A) Subsections (1) to (3) above and section 4A below do not apply in relation to anything done by the Director in the exercise of functions assigned to him by section 36A below ("Competition Act functions").

(3B) The Director may nevertheless, when exercising any Competition Act function, have regard to any matter in respect of which a duty is imposed by any of subsections (1) to (3) above or section 4A below, if it is a matter to which the Director General of Fair Trading could have regard when exercising that function. "

(4) Section 36A is amended as follows.

(5) For subsection (3) substitute--

(a) agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act, or

(b) conduct of the kind mentioned in section 18(1) of that Act,

which relate to the carrying on of activities to which this subsection applies.

(6) In subsection (5)--

(a) for "transferred by", in each place, substitute "mentioned in";

(b) after paragraph (b), insert "and";

(7) In subsection (6), omit "or (3)".

(8) In subsection (7), for paragraph (b) substitute--

" (b) Part I of the Competition Act 1998 (other than sections 38(1) to (6) and 51), " .

(9) In subsection (8)--

(a) omit "or under the 1980 Act";

(b) for "or (3) above" substitute "above and paragraph 1 of Schedule 10 to the Competition Act 1998".

(10) In subsection (9), omit "or the 1980 Act".

(11) In subsection (10), for the words from "transferred" to the end substitute "mentioned in subsection (2) or (3) above."

Electricity

4 (1) In consequence of the repeal by this Act of provisions of the [1980 c. 21.] Competition Act 1980, the functions transferred by subsection (3) of section 43 of the [1989 c. 29.] Electricity Act 1989 (functions with respect to competition) are no longer exercisable by the Director General of Electricity Supply.

(2) Accordingly, that Act is amended as follows.

(3) In section 3 (general duties of Secretary of State and Director), after subsection (6), insert--

" (6A) Subsections (1) to (5) above do not apply in relation to anything done by the Director in the exercise of functions assigned to him by section 43(3) below ("Competition Act functions").

(6B) The Director may nevertheless, when exercising any Competition Act function, have regard to any matter in respect of which a duty is imposed by any of subsections (1) to (5) above ("a general matter"), if it is a matter to which the Director General of Fair Trading could have regard when exercising that function; but that is not to be taken as implying that, in the exercise of any function mentioned in subsection (6) above, regard may not be had to any general matter. "

(4) Section 43 is amended as follows.

(5) For subsection (3) substitute--

(a) agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act, or

(b) conduct of the kind mentioned in section 18(1) of that Act,

which relate to commercial activities connected with the generation, transmission or supply of electricity.

(6) In subsection (4), omit paragraph (c) and the "and" immediately after it.

(7) In subsection (5), omit "or (3)".

(8) In subsection (6), for paragraph (b) substitute--

" (b) Part I of the Competition Act 1998 (other than sections 38(1) to (6) and 51), " .

(9) In subsection (7), omit "or the 1980 Act".

Water

5 (1) In consequence of the repeal by this Act of provisions of the [1980 c. 21.] Competition Act 1980, the functions exercisable by virtue of subsection (3) of section 31 of the [1991 c. 56.] Water Industry Act 1991 (functions of Director with respect to competition) are no longer exercisable by the Director General of Water Services.

(2) Accordingly, that Act is amended as follows.

(3) In section 2 (general duties with respect to water industry), in subsection (6)(a), at the beginning, insert "subject to subsection (6A) below".

(4) In section 2, after subsection (6), insert--

" (6A) Subsections (2) to (4) above do not apply in relation to anything done by the Director in the exercise of functions assigned to him by section 31(3) below ("Competition Act functions").

(6B) The Director may nevertheless, when exercising any Competition Act function, have regard to any matter in respect of which a duty is imposed by any of subsections (2) to (4) above, if it is a matter to which the Director General of Fair Trading could have regard when exercising that function. "

(5) Section 31 is amended as follows.

(6) For subsection (3) substitute--

(a) agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act, or

(b) conduct of the kind mentioned in section 18(1) of that Act,

which relate to commercial activities connected with the supply of water or securing a supply of water or with the provision or securing of sewerage services. "

(7) In subsection (4)--

(a) for "to (3)" substitute "and (2)";

(b) omit paragraph (c) and the "and" immediately before it.

(8) After subsection (4), insert--

" (4A) So far as necessary for the purposes of, or in connection with, the provisions of subsection (3) above, references in Part I of the Competition Act 1998 to the Director General of Fair Trading are to be read as including a reference to the Director (except in sections 38(1) to (6), 51, 52(6) and (8) and 54 of that Act and in any other provision of that Act where the context otherwise requires). "

(9) In subsection (5), omit "or in subsection (3) above".

(10) In subsection (6), omit "or in subsection (3) above".

(11) In subsection (7), omit "or (3)".

(12) In subsection (8), for paragraph (b) substitute--

" (b) Part I of the Competition Act 1998 (other than sections 38(1) to (6) and 51), " .

(13) In subsection (9), omit "or the 1980 Act".

Railways

6 (1) In consequence of the repeal by this Act of provisions of the [1980 c. 21.] Competition Act 1980, the functions transferred by subsection (3) of section 67 of the [1993 c. 43.] Railways Act 1993 (respective functions of the Regulator and the Director etc) are no longer exercisable by the Rail Regulator.

(2) Accordingly, that Act is amended as follows.

(3) In section 4 (general duties of the Secretary of State and the Regulator), after subsection (7), insert--

" (7A) Subsections (1) to (6) above do not apply in relation to anything done by the Regulator in the exercise of functions assigned to him by section 67(3) below ("Competition Act functions").

(7B) The Regulator may nevertheless, when exercising any Competition Act function, have regard to any matter in respect of which a duty is imposed by any of subsections (1) to (6) above, if it is a matter to which the Director General of Fair Trading could have regard when exercising that function. "

(4) Section 67 is amended as follows.

(5) For subsection (3) substitute--

" (3) The Regulator shall be entitled to exercise, concurrently with the Director, the functions of the Director under the provisions of Part I of the Competition Act 1998 (other than sections 38(1) to (6) and 51), so far as relating to--

(a) agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act, or

(b) conduct of the kind mentioned in section 18(1) of that Act,

which relate to the supply of railway services.

(3A) So far as necessary for the purposes of, or in connection with, the provisions of subsection (3) above, references in Part I of the Competition Act 1998 to the Director are to be read as including a reference to the Regulator (except in sections 38(1) to (6), 51, 52(6) and (8) and 54 of that Act and in any other provision of that Act where the context otherwise requires). "

(6) In subsection (4), omit paragraph (c) and the "and" immediately after it.

(7) In subsection (6)(a), omit "or (3)".

(8) In subsection (8), for paragraph (b) substitute--

" (b) Part I of the Competition Act 1998 (other than sections 38(1) to (6) and 51), " .

(9) In subsection (9)--

(a) omit "or under the 1980 Act";

(b) for "or (3) above" substitute "above and paragraph 1 of Schedule 10 to the Competition Act 1998".

Part III The Prohibitions: Northern Ireland

Electricity

7 (1) In consequence of the repeal by this Act of provisions of the [1980 c. 21.] Competition Act 1980, the functions transferred by paragraph (3) of Article 46 of the [S.I. 1992/231 (N.I. 1).] Electricity (Northern Ireland) Order 1992 (functions with respect to competition) are no longer exercisable by the Director General of Electricity Supply for Northern Ireland.

(2) Accordingly, that Order is amended as follows.

(3) In Article 6 (general duties of the Director), after paragraph (2), add--

" (3) Paragraph (1) does not apply in relation to anything done by the Director in the exercise of functions assigned to him by Article 46(3) ("Competition Act functions").

(4) The Director may nevertheless, when exercising any Competition Act function, have regard to any matter in respect of which a duty is imposed by paragraph (1) ("a general matter"), if it is a matter to which the Director General of Fair Trading could have regard when exercising that function; but that is not to be taken as implying that, in the exercise of any function mentioned in Article 4(7) or paragraph (2), regard may not be had to any general matter. "

(4) Article 46 is amended as follows.

(5) For paragraph (3) substitute--

(a) agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act, or

(b) conduct of the kind mentioned in section 18(1) of that Act,

which relate to commercial activities connected with the generation, transmission or supply of electricity.

(3A) So far as necessary for the purposes of, or in connection with, the provisions of paragraph (3), references in Part I of the Competition Act 1998 to the Director General of Fair Trading are to be read as including a reference to the Director (except in sections 38(1) to (6), 51, 52(6) and (8) and 54 of that Act and in any other provision of that Act where the context otherwise requires). "

(6) In paragraph (4), omit sub-paragraph (c) and the "and" immediately after it.

(7) In paragraph (5), omit "or (3)".

(8) In paragraph (6), for sub-paragraph (b) substitute--

" (b) Part I of the Competition Act 1998 (other than sections 38(1) to (6) and 51), " .

(9) In paragraph (7), omit "or the 1980 Act".

Gas

8 (1) In consequence of the repeal by this Act of provisions of the [1980 c. 21.] Competition Act 1980, the functions transferred by paragraph (3) of Article 23 of the [S.I. 1996/275 (N.I. 2).] Gas (Northern Ireland) Order 1996 (functions with respect to competition) are no longer exercisable by the Director General of Gas for Northern Ireland.

(2) Accordingly, that Order is amended as follows.

(3) In Article 5 (general duties of the Department and Director), after paragraph (4), insert--

" (4A) Paragraphs (2) to (4) do not apply in relation to anything done by the Director in the exercise of functions assigned to him by Article 23(3) ("Competition Act functions").

(4B) The Director may nevertheless, when exercising any Competition Act function, have regard to any matter in respect of which a duty is imposed by any of paragraphs (2) to (4), if it is a matter to which the Director General of Fair Trading could have regard when exercising that function. "

(4) Article 23 is amended as follows.

(5) For paragraph (3) substitute--

(a) agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act, or

(b) conduct of the kind mentioned in section 18(1) of that Act,

connected with the conveyance, storage or supply of gas.

(6) In paragraph (4)--

(a) for "transferred by", in each place, substitute "mentioned in";

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