Postal Services Act 2000 (c. 26)

(The document as of February, 2008)

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(b) if it concludes that any of the matters specified in the reference operate against the public interest or may be expected to do so, shall specify the effects adverse to the public interest which the matters have or may be expected to have,

(c) if it concludes that any adverse effects so specified could be remedied or prevented by modifications of the conditions of the licence, shall specify modifications by which the effects could be remedied or prevented.

(2) A report of the Competition Commission on a reference under section 15 shall be made to the Commission.

(3) The Commission--

(a) shall, on receiving such a report, serve a copy on the Secretary of State, and

(b) shall, after the end of the specified period and subject to subsection (4), publish the report in such manner as the Commission considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it.

(4) If the Secretary of State considers that the publication of any matter would be against the public interest or any person's commercial interests, he may before the end of the specified period direct the Commission to exclude the matter from every copy of the report to be published as mentioned in subsection (3)(b).

(5) In this section "the specified period" means the period of 14 days starting with the day on which the Secretary of State receives the copy under subsection (3)(a).

17 Modification following report

(1) This section applies if a report of the Competition Commission on a reference under section 15--

(a) includes conclusions to the effect that any of the matters specified in the reference operate against the public interest or may be expected to do so,

(b) specifies effects adverse to the public interest which the matters have or may be expected to have,

(c) includes conclusions to the effect that the effects could be remedied or prevented by modifications of the conditions of the licence, and

(d) specifies modifications by which the effects could be remedied or prevented.

(2) The Commission shall, subject as follows, make such modifications of the conditions of the licence as it considers are needed for the purpose of remedying or preventing the adverse effects specified in the report.

(3) Before making any such modifications, the Commission shall--

(a) have regard to the modifications specified in the report,

(b) give notice of its proposed modifications, and

(4) If, after considering any such representations, the Commission decides to make any modifications for the purpose of remedying or preventing the adverse effects specified in the report, the Commission shall give notice of the modifications to the Competition Commission.

(5) If no direction is given to the Commission under section 18(2) within the period of four weeks starting with the date on which the notice under subsection (4) is given, the Commission shall make the modifications set out in the notice.

(6) If a direction is given to the Commission under section 18(2)(b) within the period of four weeks starting with the date on which the notice under subsection (4) is given, the Commission shall make the modifications which are set out in the notice and are not specified in the direction.

18 Power of intervention of the Competition Commission

(1) The Competition Commission may give a direction under subsection (2) if it considers that the modifications set out in a notice under section 17(4) are not the modifications which are needed for the purpose of remedying or preventing all or any of the adverse effects specified by it in the report as effects which could be remedied or prevented by modifications.

(2) The Competition Commission may direct the Commission--

(a) not to make the modifications concerned, or

(b) not to make such of the modifications as may be specified in the direction.

(3) Subject to subsection (4), the Competition Commission may only give a direction under subsection (2) within the period of four weeks starting with the date on which the notice under section 17(4) is given.

(4) The Secretary of State may, on the application of the Competition Commission and within the period mentioned in subsection (3), direct that the period (and, accordingly, the period mentioned in section 17(5) and (6)) shall be extended by 14 days.

(5) The Competition Commission may itself make such modifications as it considers are needed for the purpose of remedying or preventing--

(a) if the direction was given under subsection (2)(a), the adverse effects specified in the report as effects which could be remedied or prevented by modifications,

(b) if the direction was given under subsection (2)(b), such of those adverse effects as are not remedied or prevented by the modifications made by the Commission under section 17(6).

(6) In exercising its functions under subsection (5), the Competition Commission shall have regard to the matters to which the Commission is required to have regard when determining the conditions of a licence.

(7) The Commission shall, for the purpose of assisting the Competition Commission in exercising its functions under this section, give to the Competition Commission--

(a) any information the Commission has which relates to the exercise of the functions and which the Competition Commission requests,

(b) any information the Commission has which relates to the exercise of the functions and which the Commission considers that it would be appropriate for it to give without a request,

(c) any other assistance which the Commission is able to give in relation to the exercise of the functions and which the Competition Commission requests.

(8) In exercising its functions under this section, the Competition Commission shall have regard to any information given under subsection (7).

19 Procedural requirements in relation to modifications

(1) A notice under section 17(3) shall state--

(a) that the Commission proposes to make the modifications,

(b) the effect of the modifications,

(d) the period (not less than 28 days starting with the date of publication of the notice) within which representations may be made in relation to the proposed modifications.

(2) Such a notice shall be given by--

(a) serving a copy of the notice on the licence holder, and

(b) publishing the notice in such manner as the Commission considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them.

(3) A notice under section 17(4) shall state--

(a) that the Commission proposes to make the modifications,

(b) the effect of the modifications, and

(4) The Commission shall include with such a notice--

(a) a copy of any representations made in accordance with the notice under section 17(3) and not withdrawn, and

(b) such information (including information about any change in circumstances since the report was made) as the Commission considers it desirable for the Competition Commission to have.

(5) As soon as practicable after making modifications under section 17 the Commission shall send a copy of the modifications to the licence holder, the Council and the Secretary of State.

(6) The Competition Commission shall give notice of any direction given by it under section 18(2).

(7) The notice shall state--

(a) the modifications proposed by the Commission,

(b) the terms of the direction, and

(8) Before making modifications under section 18(5) the Competition Commission shall--

(a) give notice of the modifications, and

(b) consider any representations made in accordance with the notice and not withdrawn.

(9) The notice shall state--

(a) that the Competition Commission proposes to make the modifications,

(b) the effect of the modifications,

(d) the period (not less than 28 days starting with the date of publication of the notice) within which representations may be made in relation to the proposed modifications.

(10) A notice under subsection (6) or (8) shall be given by--

(a) serving a copy of the notice on the licence holder, the Commission and the Secretary of State, and

(b) publishing the notice in such manner as the Competition Commission considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them.

(11) As soon as practicable after making modifications under section 18(5) the Competition Commission shall send a copy of the modifications to the licence holder, the Commission, the Council and the Secretary of State.

20 Application of competition legislation to references etc

(1) The provisions listed in subsection (2) shall apply to references under section 15 as if--

(a) the functions of the Competition Commission in relation to those references were functions under the [1973 c. 41.] Fair Trading Act 1973 (in this section and section 21 referred to as "the 1973 Act"),

(b) the expression "merger reference" included a reference under section 15 above,

(c) in section 70 of the 1973 Act references to the Secretary of State were to the Commission and the reference to three months were to six months,

(d) in section 93B(1) of the 1973 Act for paragraphs (a) and (b) there were substituted a reference to the Competition Commission in connection with any of its functions in relation to a reference under section 15 above.

(2) The provisions are--

(a) sections 70, 85 and 93B of the 1973 Act (time limit for report; witnesses and documents; and penalties for false or misleading information),

(b) section 24 of the [1980 c. 21.] Competition Act 1980 (modification of provisions about the Competition Commission's general functions),

(3) Section 82 of the 1973 Act (general provisions as to reports) shall apply to reports of the Competition Commission on references under section 15 above as it applies to reports of the Competition Commission under that Act.

(4) The provisions listed in subsection (5) shall apply to the exercise by the Competition Commission of its functions under section 18 above as if--

(a) in section 85 of the 1973 Act references to any investigation on a reference made to the Competition Commission under that Act were references to any investigation for the purposes of section 18 above,

(b) in section 93B(1) of the 1973 Act for paragraphs (a) and (b) there were substituted a reference to the Competition Commission in connection with any of its functions under section 18 above.

(5) The provisions are--

(a) sections 85 and 93B of the 1973 Act (witnesses and documents and penalties for false or misleading information),

(b) section 24 of the [1980 c. 21.] Competition Act 1980 (modification of provisions about the Competition Commission's general functions),

(6) Section 82(1) and (2) of the 1973 Act (prejudicial information and absolute privilege) shall apply to notices given by the Competition Commission under section 19(6) or (8) above as it applies to reports made by the Competition Commission under that Act.

21 Modification by order under other enactments

(1) This section applies if--

(a) the Secretary of State by order exercises any of the powers specified in Parts I and II of Schedule 8 to the 1973 Act, and

(b) the first or second requirement (set out below) is satisfied.

(2) The first requirement is that--

(a) the circumstances are as mentioned in section 56(1) of the 1973 Act (order on report on monopoly reference), and

(b) the monopoly situation exists in relation to the provision of postal services.

(3) The second requirement is that the circumstances are as mentioned in section 73(1) of the 1973 Act (order on report on merger reference) and--

(a) at least one of the two or more enterprises which ceased to be distinct enterprises was engaged in the provision of postal services, or

(b) at least one of the two or more enterprises which would cease to be distinct enterprises (in the application of section 73(1) of the 1973 Act by virtue of section 75(4)(e) of that Act) is engaged in the provision of postal services.

(4) The order mentioned in subsection (1) may also provide for the modification of the conditions of a licence to such extent as the Secretary of State considers necessary or expedient to give effect to or take account of any provision made by the order.

(5) As soon as practicable after making modifications under this section the Secretary of State shall send a copy of the modifications to the licence holder, the Commission and the Council.

(6) Expressions used in this section and the 1973 Act have the same meanings in this section as in that Act.

Enforcement orders

22 Final orders

(1) If the Commission is satisfied that a licence holder--

(a) is contravening any condition of his licence, or

(b) is likely to contravene any such condition,

the Commission shall by order make such provision as is needed for the purpose of securing compliance with the condition.

(2) An order under subsection (1)--

(a) shall require the licence holder to do, or not to do, such things as are specified in the order or are of a description so specified,

(b) shall take effect at such time, being the earliest practicable time, as is determined by or under the order, and

(3) An order under subsection (1) shall have effect until such time (if any) as the Commission revokes it.

(4) This section is subject to section 25.

(5) In this Act "final order" means an order under this section.

23 Provisional orders

(1) If--

(a) the Commission is not satisfied that a licence holder is contravening any condition of his licence or is likely to contravene any such condition, but

(b) the requirements in subsection (2) are met,

the Commission shall by order make such provision as it considers is needed for the purpose of securing compliance with the licence condition.

(2) The requirements are that it appears to the Commission--

(a) that the licence holder is contravening any condition of his licence or is likely to contravene any such condition, and

(b) that an order under subsection (1) is needed.

(3) In deciding whether an order under subsection (1) is needed the Commission shall have regard, in particular, to the extent to which any person is likely to sustain loss or damage as a result of anything likely to be done or omitted in contravention of the licence condition before a final order may be made.

(4) An order under subsection (1)--

(a) shall require the licence holder to do, or not to do, such things as are specified in the order or are of a description so specified,

(b) shall take effect at such time, being the earliest practicable time, as is determined by or under the order, and

(5) An order under subsection (1) shall, subject to any earlier revocation by the Commission, have effect for such period not exceeding three months as is determined by or under the order and which starts when the order takes effect.

(6) An order under subsection (1) shall not be made in any case where a previous such order has been made in respect of the same contravention or apprehended contravention by the licence holder.

(7) This section is subject to section 25.

(8) In this Act "provisional order" means an order under this section.

24 Confirmation of provisional orders

(1) The Commission shall confirm a provisional order (with or without modifications) if--

(a) it is satisfied that the licence holder is contravening any condition of his licence or is likely to contravene any such condition, and

(b) it considers that confirmation of the order (with any modifications) is needed for the purpose of securing compliance with the condition.

(2) Where the Commission confirms a provisional order under subsection (1), the order continues to have effect until such time (if any) as the Commission revokes it.

(3) This section is subject to section 25.

25 Exceptions from duty to make or confirm enforcement orders

The Commission shall not make a final order or make or confirm a provisional order if it is satisfied that--

(a) the duties imposed on it by sections 3 and 5 preclude it from doing so,

(b) the licence holder has agreed to take and is taking all the steps that the Commission considers appropriate to secure or facilitate compliance with the condition concerned, or

26 Enforcement orders: main procedural requirements

(1) Before making a final order or confirming a provisional order, the Commission shall--

(a) give notice of the proposed order or confirmation, and

(b) consider any representations made in accordance with the notice and not withdrawn.

(2) The notice shall state--

(a) that the Commission proposes to make or confirm the order,

(b) the effect of the order,

(d) the acts or omissions which the Commission considers constitute or would constitute contraventions of that condition,

(e) any other facts which the Commission considers justify the making or confirmation of the order, and

(f) the period (not less than 21 days starting with the date of publication of the notice) within which representations may be made in relation to the proposed order or confirmation.

(3) A notice under subsection (1) shall be given by--

(a) serving on the licence holder and the Council a copy of the notice and a copy of the order proposed (or proposed to be confirmed), and

(4) As soon as practicable after making a final order, or making or confirming a provisional order, the Commission shall--

(a) serve a copy of the order on the licence holder and the Council, and

(b) publish the order in such manner as the Commission considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it.

(5) This section has effect subject to section 27.

27 Enforcement orders: further procedural requirements

(1) The Commission shall not make a final order with modifications, or confirm a provisional order with modifications, unless--

(a) the licence holder consents to the modifications and the Commission complies with the requirements of subsection (2), or

(b) the Commission complies with the requirements of subsection (3).

(2) The requirements of this subsection are that the Commission shall--

(a) give notice of the proposed modifications to the Council, and

(b) consider any representations made in accordance with the notice and not withdrawn.

(3) The requirements of this subsection are that the Commission shall--

(a) give notice of the proposed modifications, and

(b) consider any representations made in accordance with the notice and not withdrawn.

(4) A notice under subsection (2) or (3) shall state--

(a) the proposed modifications,

(b) the reasons for them, and

(c) the period (not less than 7 days starting with the date of the giving of the notice under subsection (2) or (as the case may be) the publication of the notice under subsection (3)) within which representations may be made in relation to the proposed modifications.

(5) Before revoking a final order or a provisional order which has been confirmed, the Commission shall--

(a) give notice of the proposed revocation, and

(b) consider any representations made in accordance with the notice and not withdrawn.

(6) The notice shall state--

(a) that the Commission proposes to revoke the order,

(b) the effect of the proposed revocation, and

(c) the period (not less than 21 days starting with the date of publication of the notice) within which representations may be made in relation to the proposed revocation.

(7) As soon as practicable after revoking a final order or a provisional order which has been confirmed, the Commission shall give notice of the revocation.

(8) If, after giving notice under section 26(1) or subsection (3) or (5) of this section, the Commission decides not to make a final order or confirm a provisional order or (as the case may be) revoke the order, it shall give notice of that decision.

(9) If, after giving notice under subsection (2), the Commission decides not to make a final order or confirm a provisional order, it shall give notice of that decision to the licence holder concerned and the Council.

(10) A notice under subsection (2) shall be given by serving a copy of the notice on the Council and a notice under subsection (9) shall be given by serving a copy of the notice on the licence holder and the Council.

(11) Any other notice under this section shall be given by--

(a) serving a copy of the notice on the licence holder and the Council, and

28 Validity of enforcement orders

(1) This section applies if a licence holder to whom a final or provisional order relates is aggrieved by the order and wants to question its validity on the ground that--

(a) its making or confirmation was not within the powers conferred by section 22, 23 or (as the case may be) 24, or

(b) any of the requirements of sections 26 and 27 have not been complied with in relation to the making or confirmation of the order.

(2) The licence holder may apply to the court.

(3) If a copy of the order as made or confirmed was served on the licence holder the application to the court shall be made within the period of 42 days starting with the day on which the copy was served on the licence holder.

(4) On an application under this section the court may quash the order or any provision of it if the court considers it appropriate to do so and is satisfied that--

(a) the making or confirmation of the order was not within the powers conferred by section 22, 23 or (as the case may be) 24, or

(b) any of the requirements of sections 26 and 27 have not been complied with in relation to the making or confirmation of the order and the interests of the licence holder have been substantially prejudiced by the non-compliance.

(5) Where an application has been made under this section, the licence holder concerned shall not be required to comply with the order to which the application relates until the application has been determined, withdrawn or otherwise dealt with; and section 29 shall be construed accordingly.

(6) Except as provided by this section, the validity of a final or provisional order shall not be questioned in any legal proceedings.

(7) In this section "the court" means,

(a) in relation to England and Wales or Northern Ireland, the High Court,

(b) in relation to Scotland, the Court of Session.

29 Effect of enforcement orders

(1) The licence holder to whom a final or provisional order relates shall have a duty to comply with it.

(2) The duty shall be owed to any person who may be affected by a contravention of the order.

(3) Any breach of the duty which causes such a person to sustain loss or damage shall be actionable by him.

(4) In any proceedings brought against a licence holder under subsection (3) it shall be a defence for the licence holder to show that he took all reasonable steps and exercised all due diligence to avoid contravening the order.

(5) Compliance with a final or provisional order shall also be enforceable by civil proceedings brought by the Commission for an injunction or for interdict or for any other appropriate relief or remedy.

(6) Subsection (5) shall not prejudice any right that a person may have by virtue of subsection (3) to bring civil proceedings for contravention or apprehended contravention of a final or provisional order.

Financial penalties

30 Financial penalties

(1) If the Commission is satisfied that a licence holder--

(a) has contravened any condition of his licence, or

(b) is contravening any such condition,

the Commission may impose on the licence holder a penalty of such amount as is reasonable.

(2) No such penalty shall exceed 10 per cent. of the turnover of the licence holder (determined in accordance with provisions specified in an order made by the Secretary of State).

(3) The Commission may impose a penalty under this section in respect of a contravention of a licence condition irrespective of whether it has made or may make a final or provisional order in respect of that contravention.

31 Statement of policy in relation to penalties

(1) The Commission shall prepare and publish a statement of policy in relation to the imposition of penalties and the determination of their amount.

(2) In deciding whether to impose a penalty, and in determining the amount of any penalty, the Commission shall have regard to the statement of policy which was most recently published at the time when the contravention concerned occurred.

(3) The Commission may revise its statement of policy and, where it does so, it shall publish the revised statement.

(4) Publication under this section shall be in such manner as the Commission considers appropriate for the purpose of bringing the matters contained in the statement of policy to the attention of persons likely to be affected by them.

(5) The Commission shall consult the Council and such other persons as it considers appropriate when preparing or revising its statement of policy.

32 Imposition of penalties: main procedural requirements

(1) Before imposing a penalty under section 30, the Commission shall--

(a) give notice of the proposed penalty, and

(b) consider any representations made in accordance with the notice and not withdrawn.

(2) The notice shall state--

(a) that the Commission proposes to impose a penalty,

(b) the amount of the proposed penalty,

(d) the acts or omissions which the Commission considers constitute the contravention,

(e) any other facts which the Commission considers justify the imposition of a penalty and the amount of the proposed penalty,

(f) the manner in which, and place at which, it is proposed to require the penalty to be paid, and

(g) the period (not less than 21 days starting with the date of publication of the notice) within which representations may be made in relation to the proposed penalty.

(3) As soon as practicable after imposing a penalty, the Commission shall give notice of the penalty.

(4) The notice shall state--

(a) that the Commission has imposed a penalty on the licence holder,

(b) the amount of the penalty,

(d) the acts or omissions which the Commission considers constitute the contravention,

(e) any other facts which the Commission considers justify the imposition of a penalty and the amount of the penalty,

(f) the manner in which, and place at which, the penalty is required to be paid, and

(g) the date or dates, no earlier than the end of the period of 42 days from the date of service of the notice on the licence holder, by which the penalty or (as the case may be) different portions of it are required to be paid.

(5) The licence holder may, within 21 days of the date of service on him of a notice under subsection (3), apply to the Commission for it to specify a different date or (as the case may be) different dates by which the penalty or (as the case may be) different portions of it are to be paid.

(6) A notice under this section shall be given by--

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