Office of Public Sector Information

(5) On an application under this section, the Competition Appeal Tribunal may—

(a) quash the penalty;

(b) substitute a penalty of a different nature or of such lesser amount or amounts as the Competition Appeal Tribunal considers appropriate; or

(c) in a case falling within subsection (1)(c), substitute for the date or dates imposed by the Commission an alternative date or dates;

if it considers it appropriate to do so.

(6) The Competition Appeal Tribunal shall not substitute a penalty of a different nature under subsection (5)(b) unless it considers that the person on whom the penalty is imposed will, or is likely to, pay less under the substituted penalty than he would have paid under the original penalty.

(7) Where an application has been made under this section—

(a) the penalty shall not be required to be paid until the application has been determined, withdrawn or otherwise dealt with; and

(b) the Commission may agree to reduce the amount or amounts of the penalty in settlement of the application.

(8) Where the Competition Appeal Tribunal substitutes a penalty of a different nature or of a lesser amount or amounts it may require the payment of interest on the substituted penalty at such rate or rates, and from such date or dates, as it considers appropriate.

(9) Where the Competition Appeal Tribunal specifies as a date by which the penalty, or a portion of the penalty, is to be paid a date before the determination of the application under this section it may require the payment of interest on the penalty, or portion, from that date at such rate as it considers appropriate.

(10) An appeal lies to the appropriate court—

(a) on a point of law arising from a decision of the Tribunal in proceedings under this section; or

(b) from a decision of the Tribunal in such proceedings as to the amount or amounts of a penalty.

(11) An appeal under subsection (10)—

(a) may be brought by a party to the proceedings before the Tribunal; and

(b) requires the permission of the Tribunal or the appropriate court.

(12) In this section “the appropriate court” means the Court of Appeal or, in the case of Tribunal proceedings in Scotland, the Court of Session.

115 Recovery of penalties

Where a penalty imposed under section 110(1) or (3), or any portion of such a penalty, has not been paid by the date on which it is required to be paid and—

(a) no application relating to the penalty has been made under section 114 during the period within which such an application may be made, or

(b) any such application which has been made has been determined, withdrawn or otherwise dealt with,

the Commission may recover from the person on whom the penalty was imposed any of the penalty and any interest which has not been paid; and in England and Wales and Northern Ireland such penalty and interest may be recovered as a civil debt due to the Commission.

116 Statement of policy

(1) The Commission shall prepare and publish a statement of policy in relation to the enforcement of notices under section 109.

(2) The statement shall, in particular, include a statement about the considerations relevant to the determination of the nature and amount of any penalty imposed under section 110(1) or (3).

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

(4) The Commission shall consult such persons as it considers appropriate when preparing or revising its statement of policy.

117 False or misleading information

(1) A person commits an offence if—

(a) he supplies any information to the OFT, the Commission or the Secretary of State in connection with any of their functions under this Part;

(b) the information is false or misleading in a material respect; and

(c) he knows that it is false or misleading in a material respect or is reckless as to whether it is false or misleading in a material respect.

(2) A person commits an offence if he—

(a) supplies any information to another person which he knows to be false or misleading in a material respect; or

(b) recklessly supplies any information to another person which is false or misleading in a material respect;

knowing that the information is to be used for the purpose of supplying information to the OFT, the Commission or the Secretary of State in connection with any of their functions under this Part.

(3) A person who commits an offence under subsection (1) or (2) shall be liable—

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

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

Reports

118 Excisions from reports

(1) Subsection (2) applies where the Secretary of State is under a duty to publish—

(a) a report of the OFT under section 44 or 61; or

(b) a report of the Commission under section 50 or 65.

(2) The Secretary of State may exclude a matter from the report concerned if he considers that publication of the matter would be inappropriate.

(3) In deciding what is inappropriate for the purposes of subsection (2) the Secretary of State shall have regard to the considerations mentioned in section 244.

(4) The body which has prepared the report shall advise the Secretary of State as to the matters (if any) which it considers should be excluded by him under subsection (2).

(5) References in sections 38(4) and 107(11) to the giving or laying of a report of the Commission shall be construed as references to the giving or laying of the report as published.

119 Minority reports of Commission

(1) Subsection (2) applies where, on a reference to the Commission under this Part, a member of a group constituted in connection with the reference in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998 (c. 41), disagrees with any decisions contained in the report of the Commission under this Part as the decisions of the Commission.

(2) The report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing.

Miscellaneous

120 Review of decisions under Part 3

(1) Any person aggrieved by a decision of the OFT, the Secretary of State or the Commission under this Part in connection with a reference or possible reference in relation to a relevant merger situation or a special merger situation may apply to the Competition Appeal Tribunal for a review of that decision.

(2) For this purpose “decision”—

(a) does not include a decision to impose a penalty under section 110(1) or (3); but

(b) includes a failure to take a decision permitted or required by this Part in connection with a reference or possible reference.

(3) Except in so far as a direction to the contrary is given by the Competition Appeal Tribunal, the effect of the decision is not suspended by reason of the making of the application.

(4) In determining such an application the Competition Appeal Tribunal shall apply the same principles as would be applied by a court on an application for judicial review.

(5) The Competition Appeal Tribunal may—

(a) dismiss the application or quash the whole or part of the decision to which it relates; and

(b) where it quashes the whole or part of that decision, refer the matter back to the original decision maker with a direction to reconsider and make a new decision in accordance with the ruling of the Competition Appeal Tribunal.

(6) An appeal lies on any point of law arising from a decision of the Competition Appeal Tribunal under this section to the appropriate court.

(7) An appeal under subsection (6) requires the permission of the Tribunal or the appropriate court.

(8) In this section—

• “the appropriate court” means the Court of Appeal or, in the case of Tribunal proceedings in Scotland, the Court of Session; and

• “Tribunal rules” has the meaning given by section 15(1).

121 Fees

(1) The Secretary of State may by order require the payment to him or the OFT of such fees as may be prescribed by the order in connection with the exercise by the Secretary of State, the OFT and the Commission of their functions under or by virtue of this Part, Part V of the Fair Trading Act 1973 (c. 41) and sections 32 to 34 of, and Schedule 4ZA to, the Water Industry Act 1991 (c. 56).

(2) An order under this section may, in particular, provide for fees to be payable—

(a) in respect of a merger notice;

(b) in respect of an application for the consent of the Secretary of State under section 58(1) of the Act of 1973 to the transfer of a newspaper or of newspaper assets; or

(c) on the occurrence of any event specified in the order.

(3) The events that may be specified in an order under this section by virtue of subsection (2)(c) include, in particular—

(a) the decision by the OFT in relation to a possible reference under section 22 or 33 that it is or may be the case that a relevant merger situation has been created or (as the case may be) that arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation;

(b) the decision by the Secretary of State in relation to a possible reference under section 45 that it is or may be the case that a relevant merger situation has been created or (as the case may be) that arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation;

(c) the decision by the Secretary of State in relation to a possible reference under section 62 that—

(i) it is or may be the case that a special merger situation has been created or (as the case may be) that arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a special merger situation; and

(ii) one or more than one consideration mentioned in the special intervention notice is relevant to a consideration of the special merger situation concerned; and

(d) the decision by the OFT in relation to a possible reference under section 32 of the Act of 1991 that it is or may be the case that arrangements are in progress which, if carried into effect, will result in a merger of any two or more water enterprises or that such a merger has taken place otherwise than as a result of the carrying into effect of arrangements that have been the subject of a reference by virtue of paragraph (a) of that section.

(4) An order under this section may, in particular, contain provision—

(a) for ascertaining the persons by whom fees are payable;

(b) specifying whether any fee is payable to the Secretary of State or the OFT;

(c) for the amount of any fee to be calculated by reference to matters which may include—

(i) in a case involving functions of the Secretary of State under sections 57 to 61 of the Act of 1973, the number of newspapers concerned, the number of separate editions (determined in accordance with the order) of each newspaper and the average circulation per day of publication (within the meaning of Part V of that Act) of each newspaper; and

(ii) in any other case, the value of the turnover of the enterprises concerned;

(d) as to the time when any fee is to be paid; and

(e) for the repayment by the Secretary of State or the OFT of the whole or part of any fee in specified circumstances.

(5) For the purposes of subsection (4)(c)(ii) the turnover of an enterprise shall be determined in accordance with such provisions as may be specified in an order under this section.

(6) Provision made by virtue of subsection (5) may, in particular, include provision—

(a) as to the amounts which are, or which are not, to be treated as comprising an enterprise’s turnover;

(b) as to the date or dates by reference to which an enterprise’s turnover is to be determined;

(c) restricting the turnover to be taken into consideration to turnover which has a connection of a particular description with the United Kingdom.

(7) An order under this section may, in particular, in connection with provisions of the kind mentioned in subsection (5) make provision enabling the Secretary of State or the OFT to determine matters of a description specified in the order (including any of the matters mentioned in paragraphs (a) to (c) of subsection (6)).

(8) In determining the amount of any fees to be prescribed by an order under this section, the Secretary of State may take into account all costs incurred by him and by the OFT in respect of the exercise by him, the OFT and the Commission of their respective functions under or by virtue of this Part, Part V of the Act of 1973 and sections 32 to 34 of, and Schedule 4ZA to, the Act of 1991.

(9) Fees paid to the Secretary of State or the OFT under this section shall be paid into the Consolidated Fund.

(10) In this section “newspaper” has the same meaning as in Part V of the Act of 1973.

122 Primacy of Community law

(1) Advice and information published by virtue of section 106(1) or (3) shall include such advice and information about the effect of Community law, and anything done under or in accordance with it, on the provisions of this Part as the OFT or (as the case may be) the Commission considers appropriate.

(2) Advice and information published by the OFT by virtue of section 106(1) shall, in particular, include advice and information about the circumstances in which the duties of the OFT under sections 22 and 33 do not apply as a result of the European Merger Regulations or anything done under or in accordance with them.

(3) The duty or power to make a reference under section 22 or 45(2) or (3), and the power to give an intervention notice under section 42, shall apply in a case in which the relevant enterprises ceased to be distinct enterprises at a time or in circumstances not falling within section 24 if the condition mentioned in subsection (4) is satisfied.

(4) The condition mentioned in this subsection is that, because of the European Merger Regulations or anything done under or in accordance with them, the reference, or (as the case may be) the reference under section 22 to which the intervention notice relates, could not have been made earlier than 4 months before the date on which it is to be made.

(5) Where the duty or power to make a reference under section 22 or 45(2) or (3), or the power to give an intervention notice under section 42, applies as mentioned in subsection (3), references in this Part to the creation of a relevant merger situation shall be construed accordingly.

123 Power to alter share of supply test

(1) The Secretary of State may by order amend or replace the conditions which determine for the purposes of this Part whether a relevant merger situation has been created.

(2) The Secretary of State shall not exercise his power under subsection (1)—

(a) to amend or replace the conditions mentioned in paragraphs (a) and (b) of subsection (1) of section 23;

(b) to amend or replace the condition mentioned in paragraph (a) of subsection (2) of that section.

(3) In exercising his power under subsection (1) to amend or replace the condition mentioned in paragraph (b) of subsection (2) of section 23 or any condition which for the time being applies instead of it, the Secretary of State shall, in particular, have regard to the desirability of ensuring that any amended or new condition continues to operate by reference to the degree of commercial strength which results from the enterprises concerned having ceased to be distinct.

(4) Before making an order under this section the Secretary of State shall consult the OFT and the Commission.

(5) An order under this section may provide for the delegation of functions to the decision-making authority.

Other

124 Orders and regulations under Part 3

(1) Any power of the Secretary of State to make an order or regulations under this Part shall be exercisable by statutory instrument.

(2) Any power of the Secretary of State to make an order or regulations under this Part—

(a) may be exercised so as to make different provision for different cases or different purposes; and

(b) includes power to make such incidental, supplementary, consequential, transitory, transitional or saving provision as the Secretary of State considers appropriate.

(3) The power of the Secretary of State under section 34 or 123 (including that power as extended by subsection (2) above) may be exercised by modifying any enactment comprised in or made under this Act, or any other enactment.

(4) The power of the Secretary of State under section 40(8), 52(8) (including that enactment as applied by section 65(3)), 58(3), 68 or 102 as extended by subsection (2) above may be exercised by modifying any enactment comprised in or made under this Act, or any other enactment.

(5) An order made by the Secretary of State under section 28 (including that enactment as applied by section 42(5), 59(5) and 67(7)), 40(8), 52(8) (including that enactment as applied by section 65(3)), 111(4) or (6), 114(3)(b) or (4)(b) or 121 or Schedule 7 shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(6) No order shall be made by the Secretary of State under section 34, 68, 102, 123 or 128(6) unless a draft of it has been laid before, and approved by a resolution of, each House of Parliament.

(7) An order made by the Secretary of State under section 58(3) shall be laid before Parliament after being made and shall cease to have effect unless approved, within the period of 28 days beginning with the day on which it is made, by a resolution of each House of Parliament.

(8) In calculating the period of 28 days mentioned in subsection (7), no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.

(9) If an order made by the Secretary of State ceases to have effect by virtue of subsection (7), any modification made by it of an enactment is repealed (and the previous enactment revived) but without prejudice to the validity of anything done in connection with that modification before the order ceased to have effect and without prejudice to the making of a new order.

(10) If, apart from this subsection, an order made by the Secretary of State under section 58(3) would be treated for the purposes of the standing orders of either House of Parliament as a hybrid instrument, it shall proceed in that House as if it were not such an instrument.

125 Offences by bodies corporate

(1) Where an offence under this Part committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—

(a) a director, manager, secretary or other similar officer of the body corporate, or

(b) a person purporting to act in such a capacity,

he as well as the body corporate commits the offence and shall be liable to be proceeded against and punished accordingly.

(2) Where the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

(3) Where an offence under this Part is committed by a Scottish partnership and is proved to have been committed with the consent or connivance of a partner, or to be attributable to any neglect on the part of a partner, he as well as the partnership commits the offence and shall be liable to be proceeded against and punished accordingly.

(4) In subsection (3) “partner” includes a person purporting to act as a partner.

126 Service of documents

(1) Any document required or authorised by virtue of this Part to be served on any person may be served—

(a) by delivering it to him or by leaving it at his proper address or by sending it by post to him at that address;

(b) if the person is a body corporate other than a limited liability partnership, by serving it in accordance with paragraph (a) on the secretary of the body;

(c) if the person is a limited liability partnership, by serving it in accordance with paragraph (a) on a member of the partnership; or

(d) if the person is a partnership, by serving it in accordance with paragraph (a) on a partner or a person having the control or management of the partnership business.

(2) For the purposes of this section and section 7 of the Interpretation Act 1978 (c. 30) (service of documents by post) in its application to this section, the proper address of any person on whom a document is to be served shall be his last known address, except that—

(a) in the case of service on a body corporate (other than a limited liability partnership) or its secretary, it shall be the address of the registered or principal office of the body;

(b) in the case of service on a limited liability partnership or a member of the partnership, it shall be the address of the registered or principal office of the partnership;

(c) in the case of service on a partnership or a partner or a person having the control or management of a partnership business, it shall be the address of the principal office of the partnership.

(3) For the purposes of subsection (2) the principal office of a company constituted under the law of a country or territory outside the United Kingdom or of a partnership carrying on business outside the United Kingdom is its principal office within the United Kingdom.

(4) Subsection (5) applies if a person to be served under this Part with any document by another has specified to that other an address within the United Kingdom other than his proper address (as determined under subsection (2)) as the one at which he or someone on his behalf will accept documents of the same description as that document.

(5) In relation to that document, that address shall be treated as his proper address for the purposes of this section and section 7 of the Interpretation Act 1978 in its application to this section, instead of that determined under subsection (2).

(6) Any notice in writing or other document required or authorised by virtue of this Part to be served on any person may be served on that person by transmitting the text of the notice or other document to him by means of a telecommunication system (within the meaning of the Telecommunications Act 1984 (c. 12)) or by other means but while in electronic form provided the text is received by that person in legible form and is capable of being used for subsequent reference.

(7) This section does not apply to any document if rules of court make provision about its service.

(8) In this section references to serving include references to similar expressions (such as giving or sending).

127 Associated persons

(1) Associated persons, and any bodies corporate which they or any of them control, shall be treated as one person—

(a) for the purpose of deciding under section 26 whether any two enterprises have been brought under common ownership or common control; and

(b) for the purpose of determining what activities are carried on by way of business by any one person so far as that question arises in connection with paragraph 13(2) of Schedule 8.

(2) Subsection (1) shall not exclude from section 26 any case which would otherwise fall within that section.

(3) A reference under section 22, 33, 45 or 62 (whether or not made by virtue of this section) may be framed so as to exclude from consideration, either altogether or for a specified purpose or to a specified extent, any matter which, apart from this section, would not have been taken into account on that reference.

(4) For the purposes of this section—

(a) any individual and that individual’s spouse or partner and any relative, or spouse or partner of a relative, of that individual or of that individual’s spouse or partner;

(b) any person in his capacity as trustee of a settlement and the settlor or grantor and any person associated with the settlor or grantor;

(c) persons carrying on business in partnership and the spouse or partner and relatives of any of them; or

(d) two or more persons acting together to secure or exercise control of a body of persons corporate or unincorporate or to secure control of any enterprise or assets,

shall be regarded as associated with one another.

(5) The reference in subsection (1) to bodies corporate which associated persons control shall be construed in accordance with section 26(3) and (4).

(6) In this section “relative” means a brother, sister, uncle, aunt, nephew, niece, lineal ancestor or descendant (the stepchild of any person, or anyone adopted by a person, whether legally or otherwise, as his child being regarded as a relative or taken into account to trace a relationship in the same way as that person’s child); and references to a spouse or partner shall include a former spouse or partner.

128 Supply of services and market for services etc.

(1) References in this Part to the supply of services shall be construed in accordance with this section; and references in this Part to a market for services and other related expressions shall be construed accordingly.

(2) The supply of services does not include the provision of services under a contract of service or of apprenticeship whether it is express or implied and (if it is express) whether it is oral or in writing.

(3) The supply of services includes—

(a) performing for gain or reward any activity other than the supply of goods;

(b) rendering services to order;

(c) the provision of services by making them available to potential users.

(4) The supply of services includes making arrangements for the use of computer software or for granting access to data stored in any form which is not readily accessible.

(5) The supply of services includes making arrangements by means of a relevant agreement (within the meaning of section 189(2) of the Broadcasting Act 1990 (c. 42)) for sharing the use of telecommunications apparatus.

(6) The supply of services includes permitting or making arrangements to permit the use of land in such circumstances as the Secretary of State may by order specify.

129 Other interpretation provisions

(1) In this Part, unless the context otherwise requires—

• “action” includes omission; and references to the taking of action include references to refraining from action;

• “agreement” means any agreement or arrangement, in whatever way and whatever form it is made, and whether it is, or is intended to be, legally enforceable or not;

• “business” includes a professional practice and includes any other undertaking which is carried on for gain or reward or which is an undertaking in the course of which goods or services are supplied otherwise than free of charge;

• “change of circumstances” includes any discovery that information has been supplied which is false or misleading in a material respect;

• “Community law” means—

  (a)

  all the rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Community Treaties; and

  (b)

  all the remedies and procedures from time to time provided for by or under the Community Treaties;

• “consumer” means any person who is—

  (a)

  a person to whom goods are or are sought to be supplied (whether by way of sale or otherwise) in the course of a business carried on by the person supplying or seeking to supply them; or

  (b)

  a person for whom services are or are sought to be supplied in the course of a business carried on by the person supplying or seeking to supply them;

  and who does not receive or seek to receive the goods or services in the course of a business carried on by him;

• “customer” includes a customer who is not a consumer;

• “enactment” includes an Act of the Scottish Parliament, Northern Ireland legislation and an enactment comprised in subordinate legislation, and includes an enactment whenever passed or made;

• “enterprise” means the activities, or part of the activities, of a business;

• “the European Merger Regulations” means Council Regulation (EEC) No. 4064/89 of 21st December 1989 on the control of concentrations between undertakings as amended by Council Regulation (EC) No. 1310/97 of 30th June 1997;

• “goods” includes buildings and other structures, and also includes ships, aircraft and hovercraft;

• “modify” includes amend or repeal;

• “notice” means notice in writing;

• “price” includes any charge or fee (however described);

• “subordinate legislation” has the same meaning as in the Interpretation Act 1978 (c. 30) and also includes an instrument made under an Act of the Scottish Parliament and an instrument made under Northern Ireland legislation;

• “subsidiary” has the meaning given by section 736 of the Companies Act 1985 (c. 6);

• “supply”, in relation to the supply of goods, includes supply by way of sale, lease, hire or hire-purchase, and, in relation to buildings or other structures, includes the construction of them by a person for another person; and

• “United Kingdom national” means an individual who is—

  (a)

  a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen;

  (b)

  a person who under the British Nationality Act 1981 (c. 61) is a British subject; or

  (c)

  a British protected person within the meaning of that Act.

(2) For the purposes of this Part any two bodies corporate are interconnected if—

(a) one of them is a body corporate of which the other is a subsidiary; or

(b) both of them are subsidiaries of one and the same body corporate;

and in this Part “interconnected bodies corporate” shall be construed accordingly and “group of interconnected bodies corporate” means a group consisting of two or more bodies corporate all of whom are interconnected with each other.

(3) References in this Part to a person carrying on business include references to a person carrying on business in partnership with one or more other persons.

(4) Any duty to publish which is imposed on a person by this Part shall, unless the context otherwise requires, be construed as a duty on that person to publish in such manner as he considers appropriate for the purpose of bringing the matter concerned to the attention of those likely to be affected by it.

130 Index of defined expressions

In this Part, the expressions listed in the left-hand column have the meaning given by, or are to be interpreted in accordance with, the provisions listed in the right-hand column.