Office of Public Sector Information
Section 74(2).
1 (1) In this Schedule—
“RPA” means the [1976 c. 53.] Resale Prices Act 1976;
“RTPA” means the Restrictive Trade Practices Act 1976;
“continuing proceedings” has the meaning given by paragraph 15;
“the Court” means the Restrictive Practices Court;
“Director” means the Director General of Fair Trading;
“document” includes information recorded in any form;
“enactment date” means the date on which this Act is passed;
“information” includes estimates and forecasts;
“interim period” means the period beginning on the enactment date and ending immediately before the starting date;
“prescribed” means prescribed by an order made by the Secretary of State;
“regulator” means any person mentioned in paragraphs (a) to (g) of paragraph 1 of Schedule 10;
“starting date” means the date on which section 2 comes into force;
“transitional period” means the transitional period provided for in Chapters III and IV of Part IV of this Schedule.
(2) Sections 30, 44, 51, 53, 55, 56, 57 and 59(3) and (4) and paragraph 12 of Schedule 9 (“the applied provisions”) apply for the purposes of this Schedule as they apply for the purposes of Part I of this Act.
(3) Section 2(5) applies for the purposes of any provisions of this Schedule which are concerned with the operation of the Chapter I prohibition as it applies for the purposes of Part I of this Act.
(4) In relation to any of the matters in respect of which a regulator may exercise powers as a result of paragraph 35(1), the applied provisions are to have effect as if references to the Director included references to the regulator.
(5) The fact that to a limited extent the Chapter I prohibition does not apply to an agreement, because a transitional period is provided by virtue of this Schedule, does not require those provisions of the agreement in respect of which there is a transitional period to be disregarded when considering whether the agreement infringes the prohibition for other reasons.
2 (1) Nothing in this Schedule affects the power of the Secretary of State under section 75 to make transitional provisions or savings.
(2) An order under that section may modify any provision made by this Schedule.
3 (1) The Director may publish advice and information explaining provisions of this Schedule to persons who are likely to be affected by them.
(2) Any advice or information published by the Director under this paragraph is to be published in such form and manner as he considers appropriate.
4 (1) The Secretary of State may, at any time during the interim period, make one or more orders for the purpose of providing block exemptions which are effective on the starting date.
(2) An order under this paragraph has effect as if properly made under section 6.
5 An agreement which—
(a) is made during the interim period, and
(b) satisfies the conditions set out in paragraphs (a), (c) and (d) of section 27A(1) of the RTPA,
is to be treated as a non-notifiable agreement for the purposes of the RTPA.
6 In relation to agreements made during the interim period—
(a) the Director is no longer under the duty to take proceedings imposed by section 1(2)(c) of the RTPA but may continue to do so;
(b) section 21 of that Act has effect as if subsections (1) and (2) were omitted; and
(c) section 35(1) of that Act has effect as if the words “or within such further time as the Director may, upon application made within that time, allow” were omitted.
7 (1) Sub-paragraphs (2) to (4) apply in relation to agreements made during the interim period.
(2) An application may be made to the Director in anticipation of the coming into force of section 13 in accordance with directions given by the Director and such an application is to have effect on and after the starting date as if properly made under section 13.
(3) The Director may, in response to such an application—
(a) give guidance in anticipation of the coming into force of section 2; or
(b) on and after the starting date, give guidance under section 15 as if the application had been properly made under section 13.
(4) Any guidance so given is to have effect on and after the starting date as if properly given under section 15.
8 (1) Proceedings in respect of an application which is made to the Court under any of the provisions mentioned in sub-paragraph (2), but which is not determined before the starting date, cease on that date.
(2) The provisions are—
(a) sections 2(2), 35(3), 37(1) and 40(1) of the RTPA and paragraph 5 of Schedule 4 to that Act;
(b) section 4(1) of the RTPA so far as the application relates to an order under section 2(2) of that Act; and
(c) section 25(2) of the RPA.
(3) The power of the Court to make an order for costs in relation to any proceedings is not affected by anything in this paragraph or by the repeals made by section 1.
9 (1) An order in force immediately before the starting date under—
(a) section 2(2), 29(1), 30(1), 33(4), 35(3) or 37(1) of the RTPA; or
(b) section 25(2) of the RPA,
ceases to have effect on that date.
(2) An approval in force immediately before the starting date under section 32 of the RTPA ceases to have effect on that date.
10 (1) This paragraph applies even though the relevant provisions of the RTPA are repealed by this Act.
(2) The Director is to continue on and after the starting date to be under the duty imposed by section 1(2)(a) of the RTPA to maintain a register in respect of agreements—
(a) particulars of which are, on the starting date, entered or filed on the register;
(b) which fall within sub-paragraph (4);
(c) which immediately before the starting date are the subject of proceedings under the RTPA which do not cease on that date by virtue of this Schedule; or
(d) in relation to which a court gives directions to the Director after the starting date in the course of proceedings in which a question arises as to whether an agreement was, before that date—
(i) one to which the RTPA applied;
(ii) subject to registration under that Act;
(iii) a non-notifiable agreement for the purposes of that Act.
(3) The Director is to continue on and after the starting date to be under the duties imposed by section 1(2)(a) and (b) of the RTPA of compiling a register of agreements and entering or filing certain particulars in the register, but only in respect of agreements of a kind referred to in paragraph (b), (c) or (d) of sub-paragraph (2).
(4) An agreement falls within this sub-paragraph if—
(a) it is subject to registration under the RTPA but—
(i) is not a non-notifiable agreement within the meaning of section 27A of the RTPA, or
(ii) is not one to which paragraph 5 applies;
(b) particulars of the agreement have been provided to the Director before the starting date; and
(c) as at the starting date no entry or filing has been made in the register in respect of the agreement.
(5) Sections 23 and 27 of the RTPA are to apply after the starting date in respect of the register subject to such modifications, if any, as may be prescribed.
(6) In sub-paragraph (2)(d) “court” means—
(a) the High Court;
(b) the Court of Appeal;
(c) the Court of Session;
(d) the High Court or Court of Appeal in Northern Ireland; or
(e) the House of Lords.
11 (1) Even though section 3 of the RTPA is repealed by this Act, its provisions (and so far as necessary that Act) are to continue to apply, with such modifications (if any) as may be prescribed—
(a) in relation to a continuing application under that section; or
(b) so as to allow an application to be made under that section on or after the starting date in respect of a continuing application under section 1(3) of the RTPA.
(2) “Continuing application” means an application made, but not determined, before the starting date.
12 (1) Even though section 26 of the RTPA is repealed by this Act, its provisions (and so far as necessary that Act) are to continue to apply, with such modifications (if any) as may be prescribed, in relation to an application which is made under that section, but not determined, before the starting date.
(2) If an application under section 26 is determined on or after the starting date, this Schedule has effect in relation to the agreement concerned as if the application had been determined immediately before that date.
13 (1) Even though section 35 of the RTPA is repealed by this Act, its provisions (and so far as necessary that Act) are to continue to apply in respect of a person who, immediately before the starting date, has a right by virtue of section 27ZA or 35(2) of that Act to bring civil proceedings in respect of an agreement (but only so far as that right relates to any period before the starting date or, where there are continuing proceedings, the determination of the proceedings).
(2) Even though section 25 of the RPA is repealed by this Act, the provisions of that section (and so far as necessary that Act) are to continue to apply in respect of a person who, immediately before the starting date, has a right by virtue of subsection (3) of that section to bring civil proceedings (but only so far as that right relates to any period before the starting date or, where there are continuing proceedings, the determination of the proceedings).
14 (1) The Chapter I prohibition does not apply to an agreement at any time when the agreement is the subject of continuing proceedings under the RTPA.
(2) The Chapter I prohibition does not apply to an agreement relating to goods which are the subject of continuing proceedings under section 16 or 17 of the RPA to the extent to which the agreement consists of exempt provisions.
(3) In sub-paragraph (2) “exempt provisions” means those provisions of the agreement which would, disregarding section 14 of the RPA, be—
(a) void as a result of section 9(1) of the RPA; or
(b) unlawful as a result of section 9(2) or 11 of the RPA.
(4) If the Chapter I prohibition does not apply to an agreement because of this paragraph, the provisions of, or made under, the RTPA or the RPA are to continue to have effect in relation to the agreement.
(5) The repeals made by section 1 do not affect—
(a) continuing proceedings; or
(b) proceedings of the kind referred to in paragraph 11 or 12 of this Schedule which are continuing after the starting date.
15 (1) For the purposes of this Schedule “continuing proceedings” means proceedings in respect of an application made to the Court under the RTPA or the RPA, but not determined, before the starting date.
(2) But proceedings under section 3 or 26 of the RTPA to which paragraph 11 or 12 applies are not continuing proceedings.
(3) The question whether (for the purposes of Part III, or this Part, of this Schedule) an application has been determined is to be decided in accordance with sub-paragraphs (4) and (5).
(4) If an appeal against the decision on the application is brought, the application is not determined until—
(a) the appeal is disposed of or withdrawn; or
(b) if as a result of the appeal the case is referred back to the Court—
(i) the expiry of the period within which an appeal (“the further appeal”) in respect of the Court’s decision on that reference could have been brought had this Act not been passed; or
(ii) if later, the date on which the further appeal is disposed of or withdrawn.
(5) Otherwise, the application is not determined until the expiry of the period within which any party to the application would have been able to bring an appeal against the decision on the application had this Act not been passed.
16 Proceedings on an application for an order under section 4 of the RTPA are also continuing proceedings if—
(a) leave to make the application is applied for before the starting date but the proceedings in respect of that application for leave are not determined before that date; or
(b) leave to make an application for an order under that section is granted before the starting date but the application itself is not made before that date.
17 Proceedings on an application for an order under section 16 or 17 of the RPA are also continuing proceedings if—
(a) leave to make the application is applied for before the starting date but the proceedings in respect of that application for leave are not determined before that date; or
(b) leave to make an application for an order under section 16 or 17 of the RPA is granted before the starting date, but the application itself is not made before that date.
18 (1) On an application made jointly to the Court by all the parties to any continuing proceedings, the Court must, if it is satisfied that the parties wish it to do so, discontinue the proceedings.
(2) If, on an application under sub-paragraph (1) or for any other reason, the Court orders the proceedings to be discontinued, this Schedule has effect (subject to paragraphs 21 and 22) from the date on which the proceedings are discontinued as if they had never been instituted.
19 (1) Except where this Chapter or Chapter IV provides otherwise, there is a transitional period, beginning on the starting date and lasting for one year, for any agreement made before the starting date.
(2) The Chapter I prohibition does not apply to an agreement to the extent to which there is a transitional period for the agreement.
(3) The Secretary of State may by regulations provide for sections 13 to 16 and Schedule 5 to apply with such modifications (if any) as may be specified in the regulations, in respect of applications to the Director about agreements for which there is a transitional period.
20 (1) There is no transitional period for an agreement to the extent to which, immediately before the starting date, it is—
(a) void under section 2(1) or 35(1)(a) of the RTPA;
(b) the subject of an order under section 2(2) or 35(3) of the RTPA; or
(c) unlawful under section 1, 2 or 11 of the RPA or void under section 9 of that Act.
(2) There is no transitional period for an agreement to the extent to which, before the starting date, a person has acted unlawfully for the purposes of section 27ZA(2) or (3) of the RTPA in respect of the agreement.
(3) There is no transitional period for an agreement to which paragraph 25(4) applies.
(4) There is no transitional period for—
(a) an agreement in respect of which there are continuing proceedings, or
(b) an agreement relating to goods in respect of which there are continuing proceedings,
to the extent to which the agreement is, when the proceedings are determined, void or unlawful.
21 In the case of an agreement which is the subject of continuing proceedings under the RTPA, the transitional period begins—
(a) if the proceedings are discontinued, on the date of discontinuance;
(b) otherwise, when the proceedings are determined.
22 (1) In the case of an agreement relating to goods which are the subject of continuing proceedings under the RPA, the transitional period for the exempt provisions of the agreement begins—
(a) if the proceedings are discontinued, on the date of discontinuance;
(b) otherwise, when the proceedings are determined.
(2) In sub-paragraph (1) “exempt provisions” has the meaning given by paragraph 14(3).
23 (1) To the extent to which an agreement contains provisions which, immediately before the starting date, are provisions which the Court has found not to be contrary to the public interest, the transitional period lasts for five years.
(2) Sub-paragraph (1) is subject to paragraph 20(4).
(3) To the extent to which an agreement which on the starting date is the subject of continuing proceedings is, when the proceedings are determined, found by the Court not to be contrary to the public interest, the transitional period lasts for five years.
24 (1) In the case of an agreement relating to goods which, immediately before the starting date, are exempt under section 14 of the RPA, there is a transitional period for the agreement to the extent to which it consists of exempt provisions.
(2) Sub-paragraph (1) is subject to paragraph 20(4).
(3) In the case of an agreement relating to goods—
(a) which on the starting date are the subject of continuing proceedings, and
(b) which, when the proceedings are determined, are found to be exempt under section 14 of the RPA,
there is a transitional period for the agreement, to the extent to which it consists of exempt provisions.
(4) In each case, the transitional period lasts for five years.
(5) In sub-paragraphs (1) and (3) “exempt provisions” means those provisions of the agreement which would, disregarding section 14 of the RPA, be—
(a) void as a result of section 9(1) of the RPA; or
(b) unlawful as a result of section 9(2) or 11 of the RPA.
25 (1) This paragraph applies to agreements—
(a) which are subject to registration under the RTPA but which—
(i) are not non-notifiable agreements within the meaning of section 27A of the RTPA, or
(ii) are not agreements to which paragraph 5 applies; and
(b) in respect of which the time for furnishing relevant particulars as required by or under the RTPA expires on or after the starting date.
(2) “Relevant particulars” means—
(a) particulars which are required to be furnished by virtue of section 24 of the RTPA; or
(b) particulars of any variation of an agreement which are required to be furnished by virtue of sections 24 and 27 of the RTPA.
(3) There is a transitional period of one year for an agreement to which this paragraph applies if—
(a) relevant particulars are furnished before the starting date; and
(b) no person has acted unlawfully (for the purposes of section 27ZA(2) or (3) of the RTPA) in respect of the agreement.
(4) If relevant particulars are not furnished by the starting date, section 35(1)(a) of the RTPA does not apply in relation to the agreement (unless sub-paragraph (5) applies).
(5) This sub-paragraph applies if a person falling within section 27ZA(2) or (3) of the RTPA has acted unlawfully for the purposes of those subsections in respect of the agreement.
26 (1) In the case of an agreement in respect of which—
(a) a direction under section 127(2) of the [1986 c. 60.] Financial Services Act 1986 (“the 1986 Act”) is in force immediately before the starting date, or
(b) a direction under section 194A(3) of the [1990 c. 42.] Broadcasting Act 1990 (“the 1990 Act”) is in force immediately before the starting date,
the transitional period lasts for five years.
(2) To the extent to which an agreement is the subject of a declaration—
(a) made by the Treasury under section 127(3) of the 1986 Act, and
(b) in force immediately before the starting date,
the transitional period lasts for five years.
(3) Sub-paragraphs (1) and (2) do not affect the power of—
(a) the Treasury to make a declaration under section 127(2) of the 1986 Act (as amended by Schedule 2 to this Act),
(b) the Secretary of State to make a declaration under section 194A of the 1990 Act (as amended by Schedule 2 to this Act),
in respect of an agreement for which there is a transitional period.
27 In this Chapter “the relevant period” means the period beginning with the starting date and ending immediately before the fifth anniversary of that date.
28 (1) For an agreement to which, immediately before the starting date, the RTPA does not apply by virtue of a section 100 order, there is a transitional period—
(a) beginning on the starting date; and
(b) ending at the end of the relevant period.
(2) For an agreement which is made at any time after the starting date and to which, had the RTPA not been repealed, that Act would not at the time at which the agreement is made have applied by virtue of a section 100 order, there is a transitional period—
(a) beginning on the date on which the agreement is made; and
(b) ending at the end of the relevant period.
(3) For an agreement (whether made before or after the starting date) which, during the relevant period, is varied at any time in such a way that it becomes an agreement which, had the RTPA not been repealed, would at that time have been one to which that Act did not apply by virtue of a section 100 order, there is a transitional period—
(a) beginning on the date on which the variation is made; and
(b) ending at the end of the relevant period.
(4) If an agreement for which there is a transitional period as a result of sub-paragraph (1), (2) or (3) is varied during the relevant period, the transitional period for the agreement continues if, had the RTPA not been repealed, the agreement would have continued to be one to which that Act did not apply by virtue of a section 100 order.
(5) But if an agreement for which there is a transitional period as a result of sub-paragraph (1), (2) or (3) ceases to be one to which, had it not been repealed, the RTPA would not have applied by virtue of a section 100 order, the transitional period ends on the date on which the agreement so ceases.
(6) Sub-paragraph (3) is subject to paragraph 20.
(7) In this paragraph and paragraph 29—
“section 100 order” means an order made under section 100 of the [1989 c. 29.] Electricity Act 1989; and
expressions which are also used in Part I of the Electricity Act 1989 have the same meaning as in that Part.
29 (1) There is a transitional period for an agreement (whether made before or after the starting date) relating to the generation, transmission or supply of electricity which—
(a) is specified, or is of a description specified, in an order (“a transitional order”) made by the Secretary of State (whether before or after the making of the agreement but before the end of the relevant period); and
(b) satisfies such conditions as may be specified in the order.
(2) A transitional order may make provision as to when the transitional period in respect of such an agreement is to start or to be deemed to have started.
(3) The transitional period for such an agreement ends at the end of the relevant period.
(4) But if the agreement—
(a) ceases to be one to which a transitional order applies, or
(b) ceases to satisfy one or more of the conditions specified in the transitional order,
the transitional period ends on the date on which the agreement so ceases.
(5) Before making a transitional order, the Secretary of State must consult the Director General of Electricity Supply and the Director.
(6) The conditions specified in a transitional order may include conditions which refer any matter to the Secretary of State for determination after such consultation as may be so specified.
(7) In the application of this paragraph to Northern Ireland, the reference in sub-paragraph (5) to the Director General of Electricity Supply is to be read as a reference to the Director General of Electricity Supply for Northern Ireland.
30 (1) For an agreement to which, immediately before the starting date, the RTPA does not apply by virtue of section 62 or a section 62 order, there is a transitional period—
(a) beginning on the starting date; and
(b) ending at the end of the relevant period.
(2) For an agreement which is made at any time after the starting date and to which, had the RTPA not been repealed, that Act would not at the time at which the agreement is made have applied by virtue of section 62 or a section 62 order, there is a transitional period—
(a) beginning on the date on which the agreement is made; and
(b) ending at the end of the relevant period.
Competition Act 1998