Enterprise Act 2002 (c. 40)

(The document as of February, 2008)

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(f) section 114 (appeals in relation to penalties);

(g) section 115 (recovery of penalties); and

(h) section 116 (statement of policy).

(2) Section 110 shall, in its application by virtue of paragraph (1), have effect as if--

(a) subsection (2) were omitted; and

(b) in subsection (9) the words from "or section" to "section 65(3))" were omitted.

(3) Section 111(5)(b)(ii) shall, in its application by virtue of paragraph (1), have effect as if--

(a) for the words "published (or, in the case of a report under section 50 or 65, given)" there were substituted "made";

(b) for the words "published (or given)", in both places where they appear, there were substituted "made"; and

(4) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 109 to 116 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of paragraph (1), have effect in relation to those sections as applied by virtue of that paragraph.

(5) Accordingly, corresponding provisions of this Order shall not have effect in relation to those sections as applied by virtue of that paragraph. "

(4) In Article 36 (reports on references)--

(a) after paragraph (2) there is inserted--

" (2A) For the purposes of Article 37(2), a conclusion contained in a report of the Commission is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted in connection with the reference concerned in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998.

(2B) If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference under Article 34 as the conclusions of the Commission, the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing. " ;

(b) for paragraph (4) there is substituted--

" (4) For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Commission on a reference under Article 34.

(4A) In making any report on a reference under Article 34 the Commission must have regard to the following considerations before disclosing any information.

(4B) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Commission thinks is contrary to the public interest.

(4C) The second consideration is the need to exclude from disclosure (so far as practicable)--

(a) commercial information whose disclosure the Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or

(b) information relating to the private affairs of an individual whose disclosure the Commission thinks might significantly harm the individual's interests.

(4D) The third consideration is the extent to which the disclosure of the information mentioned in paragraph (4C)(a) or (b) is necessary for the purposes of the report. "

(5) In Article 47 (co-ordination of exercise of functions by CAA and Director General of Fair Trading)--

(a) in paragraph (a)--

(i) for "the Director General of Fair Trading of functions under the 1973 Act or the 1980 Act" there is substituted "the Office of Fair Trading of functions under the Enterprise Act 2002";

(ii) for "the Director" there is substituted "the Office of Fair Trading";

(b) in paragraph (b), for "the Director" there is substituted "the Office of Fair Trading".

(6) In Article 49 (restriction on disclosure of information)--

(a) in paragraph (2), for "the Director General of Fair Trading" there is substituted "the Office of Fair Trading";

(b) in paragraph (3), at the end there is inserted--

" (t) the Enterprise Act 2002 " .

Broadcasting Act 1996 (c. 55)

34 (1) The Broadcasting Act 1996 is amended as follows.

(2) In section 142 (standards for transmission hit), in subsection (6), for paragraph (f) there is substituted--

" (f) the Office of Fair Trading, " .

Channel Tunnel Rail Link Act 1996 (c. 61)

35 (1) The Channel Tunnel Rail Link Act 1996 is amended as follows.

(2) In section 21 (duties as to exercise of regulatory functions), in subsection (7)(b)--

(a) for "the Director General of Fair Trading" there is substituted "the Office of Fair Trading";

(b) for "he" there is substituted "it".

(3) In section 22 (restriction of functions in relation to competition etc.)--

(a) subsection (1) shall cease to have effect;

(b) in subsection (3), for "the Director General of Fair Trading" there is substituted "the Office of Fair Trading";

(i) for "the Director General of Fair Trading" there is substituted "the Office of Fair Trading";

(ii) for "the Director" there is substituted "the Office of Fair Trading".

Gas (Northern Ireland) Order 1996 (S.I. 1996/275 (N.I. 2))

36 (1) The Gas (Northern Ireland) Order 1996 is amended as follows.

(2) In Article 15 (licence modification references to Commission)--

(a) paragraphs (9) and (9A) shall cease to have effect;

(b) in paragraph (10), after "Articles" there is inserted "15A,".

(3) After Article 15 there is inserted--

" 15A References under Article 15: time limits

(1) Every reference under Article 15 shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made.

(2) A report of the Competition Commission on a reference under Article 15 shall not have effect (and no action shall be taken in relation to it under Article 17) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by the Director under paragraph (3).

(3) The Director may, if he has received representations on the subject from the Competition Commission and is satisfied that there are special reasons why the report cannot be made within the period specified in the reference, extend that period by no more than six months.

(4) No more than one extension is possible under paragraph (3) in relation to the same reference.

(5) The Director shall, in the case of an extension made by him under paragraph (3)--

(a) publish that extension in such manner as he considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it; and

(b) send a copy of what has been published by him under sub-paragraph (a) to the holder of the licence or, as the case may be, the relevant licence holders.

15B References under Article 15: powers of investigation

(1) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in paragraphs (2) and (3), for the purposes of references under Article 15 as they apply for the purposes of references under that Part--

(a) section 109 (attendance of witnesses and production of documents etc.);

(b) section 110 (enforcement of powers under section 109: general);

(d) section 112 (penalties: main procedural requirements);

(e) section 113 (payments and interest by instalments);

(f) section 114 (appeals in relation to penalties);

(g) section 115 (recovery of penalties); and

(h) section 116 (statement of policy).

(2) Section 110 shall, in its application by virtue of paragraph (1), have effect as if--

(a) subsection (2) were omitted; and

(b) in subsection (9) the words from "or section" to "section 65(3))" were omitted.

(3) Section 111(5)(b)(ii) shall, in its application by virtue of paragraph (1), have effect as if--

(a) for the words "published (or, in the case of a report under section 50 or 65, given)" there were substituted "made";

(b) for the words "published (or given)", in both places where they appear, there were substituted "made"; and

(5) Accordingly, corresponding provisions of this Order shall not have effect in relation to those sections as applied by virtue of that paragraph. "

(4) In Article 16 (reports on licence modification references)--

(a) after paragraph (1) there is inserted--

" (1A) For the purposes of Article 17, a conclusion contained in a report of the Competition Commission is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted in connection with the reference concerned in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998.

(1B) If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference under Article 15 as the conclusions of the Competition Commission, the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing. " ;

(b) for paragraph (3) there is substituted--

" (3) For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Competition Commission on a reference under Article 15.

(3A) In making any report on a reference under Article 15 the Competition Commission must have regard to the following considerations before disclosing any information.

(3B) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Competition Commission thinks is contrary to the public interest.

(3C) The second consideration is the need to exclude from disclosure (so far as practicable)--

(a) commercial information whose disclosure the Competition Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or

(b) information relating to the private affairs of an individual whose disclosure the Competition Commission thinks might significantly harm the individual's interests.

(3D) The third consideration is the extent to which the disclosure of the information mentioned in paragraph (3C)(a) or (b) is necessary for the purposes of the report. "

(5) In Article 23 (functions with respect to competition)--

(a) paragraph (1) shall cease to have effect;

(b) in paragraph (3), for "the Director General of Fair Trading, the functions of that Director" there is substituted "the Office of Fair Trading, the functions of the Office of Fair Trading";

(d) in paragraph (6), for "the Director General of Fair Trading" there is substituted "the Office of Fair Trading".

(6) In Article 27 (general functions), in paragraph (3)--

(a) for "the Director General of Fair Trading" there is substituted "the Office of Fair Trading"; and

(b) for "that Director" there is substituted "the Office of Fair Trading".

(7) In Article 28 (publication of information and advice), for paragraph (3) there is substituted--

" (3A) The Office of Fair Trading shall consult the Director before publishing under section 6 of the Enterprise Act 2002 any information or advice which may be published by the Director under this Article. "

(8) In Article 41(2) (exclusion of certain agreements from Restrictive Trade Practices Act 1976), for "the Director General of Fair Trading" there is substituted "the Office of Fair Trading".

Data Protection Act 1998 (c. 29)

37 (1) The Data Protection Act 1998 is amended as follows.

(2) In section 31 (regulatory activity), in subsection (5)(a), for "the Director General of Fair Trading" there is substituted "the Office of Fair Trading".

Competition Act 1998 (c. 41)

38 (1) The 1998 Act is amended as follows.

(2) In section 3(4)(b) (excluded agreements), for "the Fair Trading Act 1973" there is substituted "the Enterprise Act 2002".

(3) In section 4 (individual exemptions), for "Director" (in each place), "him" and "he" there is substituted "OFT", "it" and "it" respectively.

(4) In section 5 (cancellation etc. of individual exemptions), for "Director" (in each place), "he" (in each place) and "his" (in both places) there is substituted "OFT", "it" and "its" respectively.

(5) In section 6 (block exemptions)--

(a) for "Director" (in each place) there is substituted "OFT";

(b) in subsection (6)(c), for "he" there is substituted "it".

(6) In section 7 (block exemptions: opposition), for "Director" (in each place), and "his" (in both places) there is substituted "OFT" and "its" respectively.

(7) In section 8 (block exemptions: procedure)--

(a) for "Director" (in each place) there is substituted "OFT";

(b) in subsection (1), for "his", "he" and "him" there is substituted "its", "it" and "it" respectively;

(8) In section 10 (parallel agreements)--

(a) for "Director" (in each place) there is substituted "OFT";

(b) in subsection (8), for "his", "him" and "he" there is substituted "its", "it" and "it" respectively.

(9) In section 12 (requests for Director to examine agreements), for "Director" (in each place) there is substituted "OFT".

(10) In section 13 (notification for guidance), for "Director" (in each place), "him", "his" (in both places) and "he" there is substituted "OFT", "the OFT", "its" and "it" respectively.

(11) In section 14 (notification for a decision), for "Director" (in each place) and "him" there is substituted "OFT" and "the OFT" respectively.

(12) In section 15 (effect of guidance), for "Director" (in each place), "he" (in each place), "his" (in each place) and "him" (in each place) there is substituted "OFT", "it", "its" and "it" respectively.

(13) In section 16 (effect of a decision that the Chapter 1 prohibition has not been infringed), for "Director" (in each place), "he" (in each place), "his" (in each place) and "him" there is substituted "OFT", "it", "its" and "it" respectively.

(14) In section 20 (requests for Director to consider conduct), for "Director" (in each place) there is substituted "OFT".

(15) In section 21 (notification for guidance), for "Director" (in both places), "him" and "his" there is substituted "OFT", "the OFT" and "its" respectively.

(16) In section 22 (notification for a decision), for "Director" (in both places) and "him" there is substituted "OFT" and "the OFT" respectively.

(17) In section 23 (effect of guidance), for "Director" (in each place), "he" (in each place), "his" (in each place) and "him" (in both places) there is substituted "OFT", "it", "its" and "it" respectively.

(18) In section 24 (effect of a decision that the Chapter 2 prohibition has not been infringed), for "Director" (in each place), "he" (in each place), "his" (in each place) and "him" there is substituted "OFT", "it", "its" and "it" respectively.

(19) In section 25 (Director's power to investigate), for "Director's" and "Director" there is substituted "OFT's" and "OFT" respectively.

(20) In section 26 (powers when conducting investigations)--

(a) in subsection (1), for "Director", "him" (in both places) and "he" there is substituted "OFT", "it" and "it" respectively;

(b) in subsection (5), for "Director" there is substituted "OFT".

(21) In section 27 (power to enter premises without a warrant)--

(a) for "Director" (in each place) there is substituted "OFT";

(b) in subsection (3), for "he" (in both places) there is substituted "it".

(22) In section 28 (power to enter premises under a warrant)--

(a) in subsection (1), for "Director" (in both places) there is substituted "OFT";

(b) in subsection (2)--

(i) for "Director" there is substituted "OFT";

(ii) for "his officers whom he" there is substituted "the OFT's officers whom the OFT".

(23) In section 31 (decisions following an investigation), for "Director" (in both places) there is substituted "OFT".

(24) In section 32 (directions in relation to agreements)--

(a) in subsection (1), for "Director" and "he" (in each place) there is substituted "OFT" and "it" respectively;

(b) in subsection (2), for "Director's", "his" and "him" there is substituted "OFT's", "its" and "it" respectively.

(25) In section 33 (directions in relation to conduct)--

(a) in subsection (1), for "Director" and "he" (in each place) there is substituted "OFT" and "it" respectively;

(b) in subsection (2), for "Director's", "his" and "him" there is substituted "OFT's", "its" and "it" respectively.

(26) In section 34 (enforcement of directions), for "Director" there is substituted "OFT".

(27) In section 35 (interim measures), for "Director" (in each place), "his" (in both places), "him" and "he" (in each place) there is substituted "OFT", "its", "it" and "it" respectively.

(28) In section 36 (penalty for infringing Chapter 1 or Chapter 2 prohibition)--

(a) for "Director" (in each place) there is substituted "OFT";

(b) in subsections (1) and (2), for "him" there is substituted "the OFT";

(29) In section 37 (recovery of penalties), for "Director" and "him" there is substituted "OFT" and "the OFT" respectively.

(30) In section 38 (the appropriate level of a penalty), for "Director" (in each place), "he" (in each place) and "his" there is substituted "OFT", "it" and "its" respectively.

(31) In section 39 (limited immunity for small agreements), for "Director" (in each place), "he" (in both places) and "his" (in both places) there is substituted "OFT", "it" and "its" respectively.

(32) In section 40 (limited immunity in relation to the Chapter 2 prohibition)--

(a) for "Director" (in each place) there is substituted "OFT";

(b) in subsection (4), for "he" (in both places) and "his" there is substituted "it" and "its" respectively;

(33) In section 41 (agreements notified to the Commission), for "Director" there is substituted "OFT".

(34) In section 44 (false or misleading information), for "Director" (in each place) and "his" there is substituted "OFT" and "its" respectively.

(35) In section 45 (the Competition Commission), after subsection (7) there is inserted--

" (8) The Secretary of State may by order make such modifications in Part 2 of Schedule 7 and in Schedule 7A (performance of the Competition Commission's general functions) as he considers appropriate for improving the performance by the Competition Commission of its functions. "

(36) In section 46 (appealable decisions), for "Director" (in each place) there is substituted "OFT".

(37) In section 50 (vertical agreements and land agreements), for "Director" there is substituted "OFT".

(38) In section 51--

(a) in subsection (1), for "Director" and "he" there is substituted "OFT" and "it" respectively;

(b) in subsection (2), for "Director's" there is substituted "OFT's";

(d) in subsections (5) to (9), for "Director" (in each place) there is substituted "OFT";

(e) in subsection (10), for "Director" and "his" there is substituted "OFT" and "its";

and in the cross-heading before that section, for "Director's" there is substituted "OFT's".

(39) In section 52 (advice and information)--

(a) in subsections (2) and (3), for "Director" there is substituted "OFT";

(b) in subsection (4), for "Director" and "him" there is substituted "OFT" and "it" respectively;

(d) in subsection (6), for "Director" and "he" (in both places) there is substituted "OFT" and "it" respectively;

(e) in subsection (8), for "Director" there is substituted "OFT".

(40) In section 53 (fees), for "Director" (in each place) and "him" there is substituted "OFT" and "it" respectively.

(41) In section 54 (regulators)--

(a) in subsection (1), for the words from "any person" to the end of the subsection there is substituted " --

(a) the Director General of Telecommunications;

(b) the Gas and Electricity Markets Authority;

(d) the Director General of Water Services;

(e) the Rail Regulator;

(f) the Director General of Gas for Northern Ireland; and

(g) the Civil Aviation Authority. " ;

(b) for "Director" (in each place) there is substituted "OFT".

(42) In section 57 (defamation), for "Director" and "his" there is substituted "OFT" and "its" respectively.

(43) In section 58 (findings of fact by Director)--

(a) for "Director" (in each place) there is substituted "OFT";

(b) for "a Director's" (in both places) there is substituted "an OFT's";

and in the cross-heading before that section, for "Director" there is substituted "OFT".

(44) In section 59 (interpretation of Part 1) --

(a) in subsection (1), the definition of "the Director" shall cease to have effect and after the definition of "officer" there is inserted--

" "the OFT" means the Office of Fair Trading; " ;

(b) in subsection (4), for "Director" and "he" there is substituted "OFT" and "it" respectively.

(45) In section 60 (principles to be applied in determining questions), for "Director" (in both places) there is substituted "OFT".

(46) In section 61 (introduction)--

(a) in subsection (1)--

(i) in the definition of "authorised officer", for "Director" there is substituted "OFT";

(ii) the definition of "the Director" shall cease to have effect;

(iii) after the definition of "Commission investigation" there is inserted--

" "the OFT" means the Office of Fair Trading; " ;

(iv) for ""Director's investigation" means an investigation conducted by the Director" there is substituted ""OFT's investigation" means an investigation conducted by the OFT";

(v) for ""Director's special investigation" means a Director's" there is substituted ""OFT's special investigation" means an OFT's";

(vi) in the definition of "premises", for "a Director's" there is substituted "an OFT's";

(b) in subsection (2)--

(i) for "a Director's" there is substituted "an OFT's";

(ii) for "Director" there is substituted "OFT";

(47) In section 62 (power to enter premises: Commission investigation)--

(a) in subsection (1), for "Director" there is substituted "OFT", and

(b) in subsection (5)--

(i) in paragraph (a), for "Director" there is substituted "OFT";

(ii) in paragraph (b), for "his officers whom he" there is substituted "the OFT's officers whom the OFT".

(48) In section 63 (power to enter premises: Director's special investigations)--

(a) in subsection (1), for "Director, that a Director's" there is substituted "OFT, that an OFT's";

(b) in subsections (2) to (4), for "A Director's" and "Director" there is substituted "An OFT's" and "OFT" respectively;

(d) in the sidenote, for "Director's" there is substituted "OFT's".

(49) In section 71 (regulations, orders and rules), in subsection (4), after paragraph (c) there is inserted--

" (ca) section 45(8), " .

(50) In Schedule 1 (exclusions: mergers and concentrations)--

(a) in paragraph 1--

(i) in sub-paragraph (1), for the words from "Part V" to "1973 Act")" there is substituted "Part 3 of the Enterprise Act 2002 ("the 2002 Act")";

(ii) in sub-paragraph (4), for "Section 65 of the 1973 Act" there is substituted "Section 26 of the 2002 Act";

(b) in paragraph 2--

(i) in sub-paragraph (1)(a), for "Part V of the 1973 Act" there is substituted "Part 3 of the 2002 Act";

(ii) in sub-paragraph (2), for "Section 65 of the 1973 Act" there is substituted "Section 26 of the 2002 Act";

(i) for "Director" (in each place) there is substituted "OFT";

(ii) in sub-paragraph (2), for "he" (in both places) and "him" there is substituted "it" and "the OFT" respectively;

(iii) in sub-paragraph (5), for "he" (in both places) there is substituted "it";

(d) in paragraph 5, for paragraphs (a) to (d) there is substituted--

" (a) the OFT or (as the case may be) the Secretary of State has published its or his decision not to make a reference to the Competition Commission under section 22, 33, 45 or 62 of the 2002 Act in connection with the agreement;

(b) the OFT or (as the case may be) the Secretary of State has made a reference to the Competition Commission under section 22, 33, 45 or 62 of the 2002 Act in connection with the agreement and the Commission has found that the agreement has given rise to, or would if carried out give rise to, a relevant merger situation or (as the case may be) a special merger situation;

(c) the agreement does not fall within paragraph (a) or (b) but has given rise to, or would if carried out give rise to, enterprises to which it relates being regarded under section 26 of the 2002 Act as ceasing to be distinct enterprises (otherwise than as the result of subsection (3) or (4)(b) of that section); or

(d) the OFT has made a reference to the Competition Commission under section 32 of the Water Industry Act 1991 in connection with the agreement and the Commission has found that the agreement has given rise to, or would if carried out give rise to, a merger of any two or more water enterprises of the kind to which that section applies. "

(51) In Schedule 3 (general exclusions)--

(a) in paragraph 2--

(i) for "Director" (in each place) there is substituted "OFT";

(ii) in sub-paragraph (4), for "he" (in both places) and "him" there is substituted "it" and "the OFT" respectively;

(iii) in sub-paragraph (7), for "if he" and "he is" there is substituted "if it" and "the OFT is" respectively;

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