PART XVIII continued CHAPTER II continued
(1) For the purpose of investigating any matter with a view to its consideration under section 303 or 304, the Director may exercise the powers conferred on him by this section.
(2) The Director may by notice in writing require any person to produce to him or to a person appointed by him for the purpose, at a time and place specified in the notice, any document which—
(a) is specified or described in the notice; and
(b) is a document in that person’s custody or under his control.
(3) The Director may by notice in writing—
(a) require any person carrying on any business to provide him with such information as may be specified or described in the notice; and
(b) specify the time within which, and the manner and form in which, any such information is to be provided.
(4) A requirement may be imposed under subsection (2) or (3)(a) only in respect of documents or information which relate to any matter relevant to the investigation.
(5) If a person (“the defaulter”) refuses, or otherwise fails, to comply with a notice under this section, the Director may certify that fact in writing to the court and the court may enquire into the case.
(6) If, after hearing any witness who may be produced against or on behalf of the defaulter and any statement which may be offered in defence, the court is satisfied that the defaulter did not have a reasonable excuse for refusing or otherwise failing to comply with the notice, the court may deal with the defaulter as if he were in contempt.
(7) In this section, “the court” means—
(a) the High Court; or
(b) in Scotland, the Court of Session.
(1) If subsection (2) or (3) applies, the Commission must investigate the matter which is the subject of the Director’s report.
(2) This subsection applies if the Director sends to the Competition Commission a report—
(a) issued by him under section 303(3) which concludes that one or more regulatory provisions have a significantly adverse effect on competition, or
(b) made by him under section 304(2).
(3) This subsection applies if the Director asks the Commission to consider a report—
(a) issued by him under section 303(3) which concludes that one or more regulatory provisions do not have a significantly adverse effect on competition, or
(b) made by him under section 304(3).
(4) The Commission must then make its own report on the matter unless it considers that, as a result of a change of circumstances, no useful purpose would be served by a report.
(5) If the Commission decides in accordance with subsection (4) not to make a report, it must make a statement setting out the change of circumstances which resulted in that decision.
(6) A report made under this section must state the Commission’s conclusion as to whether—
(a) the regulatory provision or practice which is the subject of the report has a significantly adverse effect on competition, or
(b) the regulatory provisions or practices or combination of regulatory provisions and practices which are the subject of the report have such an effect.
(7) A report under this section stating the Commission’s conclusion that there is a significantly adverse effect on competition must also—
(a) state whether the Commission considers that that effect is justified; and
(b) if it states that the Commission considers that it is not justified, state its conclusion as to what action, if any, the Treasury ought to direct the Authority to take.
(8) Subsection (9) applies whenever the Commission is considering, for the purposes of this section, whether a particular adverse effect on competition is justified.
(9) The Commission must ensure, so far as that is reasonably possible, that the conclusion it reaches is compatible with the obligations imposed on the recognised body concerned by or under this Act.
(10) A report under this section must contain such an account of the Commission’s reasons for its conclusions as is expedient, in the opinion of the Commission, for facilitating proper understanding of them.
(11) The provisions of Schedule 14 (except paragraph 2(b)) apply for the purposes of this section as they apply for the purposes of section 162.
(12) If the Commission makes a report under this section it must send a copy to the Treasury, the Authority and the Director.
(1) Subsection (2) applies if, on an application for a recognition order—
(a) the Director makes a report under section 303 but does not ask the Competition Commission to consider it under section 306;
(b) the Competition Commission concludes—
(i) that the applicant’s regulatory provisions do not have a significantly adverse effect on competition; or
(ii) that if those provisions do have that effect, the effect is justified.
(2) The Treasury may refuse to approve the making of the recognition order only if they consider that the exceptional circumstances of the case make it inappropriate for them to give their approval.
(3) Subsection (4) applies if, on an application for a recognition order, the Competition Commission concludes—
(a) that the applicant’s regulatory provisions have a significantly adverse effect on competition; and
(b) that that effect is not justified.
(4) The Treasury must refuse to approve the making of the recognition order unless they consider that the exceptional circumstances of the case make it inappropriate for them to refuse their approval.
(1) This section applies if the Competition Commission makes a report under section 306(4) (other than a report on an application for a recognition order) which states the Commission’s conclusion that there is a significantly adverse effect on competition.
(2) If the Commission’s conclusion, as stated in the report, is that the adverse effect on competition is not justified, the Treasury must give a remedial direction to the Authority.
(3) But subsection (2) does not apply if the Treasury consider—
(a) that, as a result of action taken by the Authority or the recognised body concerned in response to the Commission’s report, it is unnecessary for them to give a direction; or
(b) that the exceptional circumstances of the case make it inappropriate or unnecessary for them to do so.
(4) In considering the action to be specified in a remedial direction, the Treasury must have regard to any conclusion of the Commission included in the report because of section 306(7)(b).
(5) Subsection (6) applies if—
(a) the Commission’s conclusion, as stated in its report, is that the adverse effect on competition is justified; but
(b) the Treasury consider that the exceptional circumstances of the case require them to act.
(6) The Treasury may give a direction to the Authority requiring it to take such action—
(a) as they consider to be necessary in the light of the exceptional circumstances of the case; and
(b) as may be specified in the direction.
(7) If the action specified in a remedial direction is the giving by the Authority of a direction—
(a) the direction to be given must be compatible with the recognition requirements applicable to the recognised body in relation to which it is given; and
(b) subsections (3) and (4) of section 296 apply to it as if it were a direction given under that section.
(8) “Remedial direction” means a direction requiring the Authority—
(a) to revoke the recognition order for the body concerned; or
(b) to give such directions to the body concerned as may be specified in it.
(1) If, in reliance on subsection (3)(a) or (b) of section 308, the Treasury decline to act under subsection (2) of that section, they must make a statement to that effect, giving their reasons.
(2) If the Treasury give a direction under section 308 they must make a statement giving—
(a) details of the direction; and
(b) if the direction is given under subsection (6) of that section, their reasons for giving it.
(3) The Treasury must—
(a) publish any statement made under this section in the way appearing to them best calculated to bring it to the attention of the public; and
(b) lay a copy of it before Parliament.
(1) Subsection (2) applies if the Treasury are considering—
(a) whether to refuse their approval under section 307;
(b) whether section 308(2) applies; or
(c) whether to give a direction under section 308(6).
(2) The Treasury must—
(a) take such steps as they consider appropriate to allow the exchange or clearing house concerned, and any other person appearing to the Treasury to be affected, an opportunity to make representations—
(i) about any report made by the Director under section 303 or 304 or by the Competition Commission under section 306;
(ii) as to whether, and if so how, the Treasury should exercise their powers under section 307 or 308; and
(b) have regard to any such representations.
(1) The Chapter I prohibition does not apply to an agreement for the constitution of a recognised body to the extent to which the agreement relates to the regulatory provisions of that body.
(2) If the conditions set out in subsection (3) are satisfied, the Chapter I prohibition does not apply to an agreement for the constitution of—
(a) an investment exchange which is not a recognised investment exchange, or
(b) a clearing house which is not a recognised clearing house,
to the extent to which the agreement relates to the regulatory provisions of that body.
(3) The conditions are that—
(a) the body has applied for a recognition order in accordance with the provisions of this Act; and
(b) the application has not been determined.
(4) The Chapter I prohibition does not apply to a recognised body’s regulatory provisions.
(5) The Chapter I prohibition does not apply to a decision made by a recognised body to the extent to which the decision relates to any of that body’s regulatory provisions or practices.
(6) The Chapter I prohibition does not apply to practices of a recognised body.
(7) The Chapter I prohibition does not apply to an agreement the parties to which consist of or include—
(a) a recognised body, or
(b) a person who is subject to the rules of a recognised body,
to the extent to which the agreement consists of provisions the inclusion of which is required or encouraged by any of the body’s regulatory provisions or practices.
(8) If a recognised body’s recognition order is revoked, this section is to have effect as if that body had continued to be recognised until the end of the period of six months beginning with the day on which the revocation took effect.
(9) “The Chapter I prohibition” means the prohibition imposed by section 2(1) of the [1998 c. 41.] Competition Act 1998.
(10) Expressions used in this section which are also used in Part I of the Competition Act 1998 are to be interpreted in the same way as for the purposes of that Part of that Act.
(1) The Chapter II prohibition does not apply to—
(a) practices of a recognised body;
(b) the adoption or enforcement of such a body’s regulatory provisions;
(c) any conduct which is engaged in by such a body or by a person who is subject to the rules of such a body to the extent to which it is encouraged or required by the regulatory provisions of the body.
(2) The Chapter II prohibition means the prohibition imposed by section 18(1) of the [1998 c. 41.] Competition Act 1998.
(1) In this Part—
“application” means an application for a recognition order made under section 287 or 288;
“applicant” means a body corporate or unincorporated association which has applied for a recognition order;
“Director” means the Director General of Fair Trading;
“overseas applicant” means a body corporate or association which has neither its head office nor its registered office in the United Kingdom and which has applied for a recognition order;
“overseas investment exchange” means a body corporate or association which has neither its head office nor its registered office in the United Kingdom and in relation to which a recognition order is in force;
“overseas clearing house” means a body corporate or association which has neither its head office nor its registered office in the United Kingdom and in relation to which a recognition order is in force;
“recognised body” means a recognised investment exchange or a recognised clearing house;
“recognised clearing house” has the meaning given in section 285;
“recognised investment exchange” has the meaning given in section 285;
“recognition order” means an order made under section 290 or 292;
“recognition requirements” has the meaning given by section 286;
“remedial direction” has the meaning given in section 308(8);
“revocation order” has the meaning given in section 297.
(2) References in this Part to rules of an investment exchange (or a clearing house) are to rules made, or conditions imposed, by the investment exchange (or the clearing house) with respect to—
(a) recognition requirements;
(b) admission of persons to, or their exclusion from the use of, its facilities; or
(c) matters relating to its constitution.
(3) References in this Part to guidance issued by an investment exchange are references to guidance issued, or any recommendation made, in writing or other legible form and intended to have continuing effect, by the investment exchange to—
(a) all or any class of its members or users, or
(b) persons seeking to become members of the investment exchange or to use its facilities,
with respect to any of the matters mentioned in subsection (2)(a) to (c).
(4) References in this Part to guidance issued by a clearing house are to guidance issued, or any recommendation made, in writing or other legible form and intended to have continuing effect, by the clearing house to—
(a) all or any class of its members, or
(b) persons using or seeking to use its services,
with respect to the provision by it or its members of clearing services.