PART II continued
(2) The provisions are—
(a) sections 70, 85 and 93B of the 1973 Act (time limit for report; witnesses and documents; and penalties for false or misleading information),
(b) section 24 of the [1980 c. 21.] Competition Act 1980 (modification of provisions about the Competition Commission’s general functions),
(c) Part II of Schedule 7 to the [1998 c. 41.] Competition Act 1998 (the Competition Commission’s general functions).
(3) Section 82 of the 1973 Act (general provisions as to reports) shall apply to reports of the Competition Commission on references under section 15 above as it applies to reports of the Competition Commission under that Act.
(4) The provisions listed in subsection (5) shall apply to the exercise by the Competition Commission of its functions under section 18 above as if—
(a) in section 85 of the 1973 Act references to any investigation on a reference made to the Competition Commission under that Act were references to any investigation for the purposes of section 18 above,
(b) in section 93B(1) of the 1973 Act for paragraphs (a) and (b) there were substituted a reference to the Competition Commission in connection with any of its functions under section 18 above.
(5) The provisions are—
(a) sections 85 and 93B of the 1973 Act (witnesses and documents and penalties for false or misleading information),
(b) section 24 of the [1980 c. 21.] Competition Act 1980 (modification of provisions about the Competition Commission’s general functions),
(c) Part II of Schedule 7 to the [1998 c. 41.] Competition Act 1998 (the Competition Commission’s general functions).
(6) Section 82(1) and (2) of the 1973 Act (prejudicial information and absolute privilege) shall apply to notices given by the Competition Commission under section 19(6) or (8) above as it applies to reports made by the Competition Commission under that Act.
(1) This section applies if—
(a) the Secretary of State by order exercises any of the powers specified in Parts I and II of Schedule 8 to the 1973 Act, and
(b) the first or second requirement (set out below) is satisfied.
(2) The first requirement is that—
(a) the circumstances are as mentioned in section 56(1) of the 1973 Act (order on report on monopoly reference), and
(b) the monopoly situation exists in relation to the provision of postal services.
(3) The second requirement is that the circumstances are as mentioned in section 73(1) of the 1973 Act (order on report on merger reference) and—
(a) at least one of the two or more enterprises which ceased to be distinct enterprises was engaged in the provision of postal services, or
(b) at least one of the two or more enterprises which would cease to be distinct enterprises (in the application of section 73(1) of the 1973 Act by virtue of section 75(4)(e) of that Act) is engaged in the provision of postal services.
(4) The order mentioned in subsection (1) may also provide for the modification of the conditions of a licence to such extent as the Secretary of State considers necessary or expedient to give effect to or take account of any provision made by the order.
(5) As soon as practicable after making modifications under this section the Secretary of State shall send a copy of the modifications to the licence holder, the Commission and the Council.
(6) Expressions used in this section and the 1973 Act have the same meanings in this section as in that Act.
(1) If the Commission is satisfied that a licence holder—
(a) is contravening any condition of his licence, or
(b) is likely to contravene any such condition,
the Commission shall by order make such provision as is needed for the purpose of securing compliance with the condition.
(2) An order under subsection (1)—
(a) shall require the licence holder to do, or not to do, such things as are specified in the order or are of a description so specified,
(b) shall take effect at such time, being the earliest practicable time, as is determined by or under the order, and
(c) may be revoked at any time by the Commission.
(3) An order under subsection (1) shall have effect until such time (if any) as the Commission revokes it.
(4) This section is subject to section 25.
(5) In this Act “final order” means an order under this section.
(1) If—
(a) the Commission is not satisfied that a licence holder is contravening any condition of his licence or is likely to contravene any such condition, but
(b) the requirements in subsection (2) are met,
the Commission shall by order make such provision as it considers is needed for the purpose of securing compliance with the licence condition.
(2) The requirements are that it appears to the Commission—
(a) that the licence holder is contravening any condition of his licence or is likely to contravene any such condition, and
(b) that an order under subsection (1) is needed.
(3) In deciding whether an order under subsection (1) is needed the Commission shall have regard, in particular, to the extent to which any person is likely to sustain loss or damage as a result of anything likely to be done or omitted in contravention of the licence condition before a final order may be made.
(4) An order under subsection (1)—
(a) shall require the licence holder to do, or not to do, such things as are specified in the order or are of a description so specified,
(b) shall take effect at such time, being the earliest practicable time, as is determined by or under the order, and
(c) may be revoked at any time by the Commission.
(5) An order under subsection (1) shall, subject to any earlier revocation by the Commission, have effect for such period not exceeding three months as is determined by or under the order and which starts when the order takes effect.
(6) An order under subsection (1) shall not be made in any case where a previous such order has been made in respect of the same contravention or apprehended contravention by the licence holder.
(7) This section is subject to section 25.
(8) In this Act “provisional order” means an order under this section.
(1) The Commission shall confirm a provisional order (with or without modifications) if—
(a) it is satisfied that the licence holder is contravening any condition of his licence or is likely to contravene any such condition, and
(b) it considers that confirmation of the order (with any modifications) is needed for the purpose of securing compliance with the condition.
(2) Where the Commission confirms a provisional order under subsection (1), the order continues to have effect until such time (if any) as the Commission revokes it.
(3) This section is subject to section 25.
The Commission shall not make a final order or make or confirm a provisional order if it is satisfied that—
(a) the duties imposed on it by sections 3 and 5 preclude it from doing so,
(b) the licence holder has agreed to take and is taking all the steps that the Commission considers appropriate to secure or facilitate compliance with the condition concerned, or
(c) the contraventions or apprehended contraventions are trivial.
(1) Before making a final order or confirming a provisional order, the Commission shall—
(a) give notice of the proposed order or confirmation, and
(b) consider any representations made in accordance with the notice and not withdrawn.
(2) The notice shall state—
(a) that the Commission proposes to make or confirm the order,
(b) the effect of the order,
(c) the condition for the purpose of securing compliance with which the order is to be made or confirmed,
(d) the acts or omissions which the Commission considers constitute or would constitute contraventions of that condition,
(e) any other facts which the Commission considers justify the making or confirmation of the order, and
(f) the period (not less than 21 days starting with the date of publication of the notice) within which representations may be made in relation to the proposed order or confirmation.
(3) A notice under subsection (1) shall be given by—
(a) serving on the licence holder and the Council a copy of the notice and a copy of the order proposed (or proposed to be confirmed), and
(b) publishing the notice in such manner as the Commission considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them.
(4) As soon as practicable after making a final order, or making or confirming a provisional order, the Commission shall—
(a) serve a copy of the order on the licence holder and the Council, and
(b) publish the order in such manner as the Commission considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it.
(5) This section has effect subject to section 27.
(1) The Commission shall not make a final order with modifications, or confirm a provisional order with modifications, unless—
(a) the licence holder consents to the modifications and the Commission complies with the requirements of subsection (2), or
(b) the Commission complies with the requirements of subsection (3).
(2) The requirements of this subsection are that the Commission shall—
(a) give notice of the proposed modifications to the Council, and
(b) consider any representations made in accordance with the notice and not withdrawn.
(3) The requirements of this subsection are that the Commission shall—
(a) give notice of the proposed modifications, and
(b) consider any representations made in accordance with the notice and not withdrawn.
(4) A notice under subsection (2) or (3) shall state—
(a) the proposed modifications,
(b) the reasons for them, and
(c) the period (not less than 7 days starting with the date of the giving of the notice under subsection (2) or (as the case may be) the publication of the notice under subsection (3)) within which representations may be made in relation to the proposed modifications.
(5) Before revoking a final order or a provisional order which has been confirmed, the Commission shall—
(a) give notice of the proposed revocation, and
(b) consider any representations made in accordance with the notice and not withdrawn.
(6) The notice shall state—
(a) that the Commission proposes to revoke the order,
(b) the effect of the proposed revocation, and
(c) the period (not less than 21 days starting with the date of publication of the notice) within which representations may be made in relation to the proposed revocation.
(7) As soon as practicable after revoking a final order or a provisional order which has been confirmed, the Commission shall give notice of the revocation.
(8) If, after giving notice under section 26(1) or subsection (3) or (5) of this section, the Commission decides not to make a final order or confirm a provisional order or (as the case may be) revoke the order, it shall give notice of that decision.
(9) If, after giving notice under subsection (2), the Commission decides not to make a final order or confirm a provisional order, it shall give notice of that decision to the licence holder concerned and the Council.
(10) A notice under subsection (2) shall be given by serving a copy of the notice on the Council and a notice under subsection (9) shall be given by serving a copy of the notice on the licence holder and the Council.
(11) Any other notice under this section shall be given by—
(a) serving a copy of the notice on the licence holder and the Council, and
(b) publishing the notice in such manner as the Commission considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them.
(1) This section applies if a licence holder to whom a final or provisional order relates is aggrieved by the order and wants to question its validity on the ground that—
(a) its making or confirmation was not within the powers conferred by section 22, 23 or (as the case may be) 24, or
(b) any of the requirements of sections 26 and 27 have not been complied with in relation to the making or confirmation of the order.
(2) The licence holder may apply to the court.
(3) If a copy of the order as made or confirmed was served on the licence holder the application to the court shall be made within the period of 42 days starting with the day on which the copy was served on the licence holder.
(4) On an application under this section the court may quash the order or any provision of it if the court considers it appropriate to do so and is satisfied that—
(a) the making or confirmation of the order was not within the powers conferred by section 22, 23 or (as the case may be) 24, or
(b) any of the requirements of sections 26 and 27 have not been complied with in relation to the making or confirmation of the order and the interests of the licence holder have been substantially prejudiced by the non-compliance.
(5) Where an application has been made under this section, the licence holder concerned shall not be required to comply with the order to which the application relates until the application has been determined, withdrawn or otherwise dealt with; and section 29 shall be construed accordingly.
(6) Except as provided by this section, the validity of a final or provisional order shall not be questioned in any legal proceedings.
(7) In this section “the court” means,
(a) in relation to England and Wales or Northern Ireland, the High Court,
(b) in relation to Scotland, the Court of Session.
(1) The licence holder to whom a final or provisional order relates shall have a duty to comply with it.
(2) The duty shall be owed to any person who may be affected by a contravention of the order.
(3) Any breach of the duty which causes such a person to sustain loss or damage shall be actionable by him.
(4) In any proceedings brought against a licence holder under subsection (3) it shall be a defence for the licence holder to show that he took all reasonable steps and exercised all due diligence to avoid contravening the order.
(5) Compliance with a final or provisional order shall also be enforceable by civil proceedings brought by the Commission for an injunction or for interdict or for any other appropriate relief or remedy.
(6) Subsection (5) shall not prejudice any right that a person may have by virtue of subsection (3) to bring civil proceedings for contravention or apprehended contravention of a final or provisional order.
(1) If the Commission is satisfied that a licence holder—
(a) has contravened any condition of his licence, or
(b) is contravening any such condition,
the Commission may impose on the licence holder a penalty of such amount as is reasonable.
(2) No such penalty shall exceed 10 per cent. of the turnover of the licence holder (determined in accordance with provisions specified in an order made by the Secretary of State).
(3) The Commission may impose a penalty under this section in respect of a contravention of a licence condition irrespective of whether it has made or may make a final or provisional order in respect of that contravention.
(1) The Commission shall prepare and publish a statement of policy in relation to the imposition of penalties and the determination of their amount.
(2) In deciding whether to impose a penalty, and in determining the amount of any penalty, the Commission shall have regard to the statement of policy which was most recently published at the time when the contravention concerned occurred.
(3) The Commission may revise its statement of policy and, where it does so, it shall publish the revised statement.
(4) Publication under this section shall be in such manner as the Commission considers appropriate for the purpose of bringing the matters contained in the statement of policy to the attention of persons likely to be affected by them.
(5) The Commission shall consult the Council and such other persons as it considers appropriate when preparing or revising its statement of policy.
(1) Before imposing a penalty under section 30, the Commission shall—
(a) give notice of the proposed penalty, and
(b) consider any representations made in accordance with the notice and not withdrawn.
(2) The notice shall state—
(a) that the Commission proposes to impose a penalty,
(b) the amount of the proposed penalty,
(c) the condition which the Commission is satisfied has been contravened or is being contravened,
(d) the acts or omissions which the Commission considers constitute the contravention,
(e) any other facts which the Commission considers justify the imposition of a penalty and the amount of the proposed penalty,
(f) the manner in which, and place at which, it is proposed to require the penalty to be paid, and
(g) the period (not less than 21 days starting with the date of publication of the notice) within which representations may be made in relation to the proposed penalty.
(3) As soon as practicable after imposing a penalty, the Commission shall give notice of the penalty.
(4) The notice shall state—
(a) that the Commission has imposed a penalty on the licence holder,
(b) the amount of the penalty,
(c) the condition which the Commission is satisfied has been contravened or is being contravened,
(d) the acts or omissions which the Commission considers constitute the contravention,
(e) any other facts which the Commission considers justify the imposition of a penalty and the amount of the penalty,
(f) the manner in which, and place at which, the penalty is required to be paid, and
(g) the date or dates, no earlier than the end of the period of 42 days from the date of service of the notice on the licence holder, by which the penalty or (as the case may be) different portions of it are required to be paid.
(5) The licence holder may, within 21 days of the date of service on him of a notice under subsection (3), apply to the Commission for it to specify a different date or (as the case may be) different dates by which the penalty or (as the case may be) different portions of it are to be paid.
(6) A notice under this section shall be given by—
(a) serving a copy of the notice on the licence holder and the Council, and
(b) publishing the notice in such manner as the Commission considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them.
(7) This section has effect subject to section 33.
(1) The Commission shall not vary the proposed amount of a penalty as stated in a notice under section 32(1) unless—
(a) the licence holder consents to the variation, or
(b) the Commission complies with the requirements of subsection (2).
(2) The requirements are that the Commission shall—
(a) give notice of the proposed variation, and
(b) consider any representations made in accordance with the notice and not withdrawn.
(3) The notice shall state—
(a) the proposed variation,
(b) the reasons for it, and
(c) the period (not less than 7 days starting with the date of publication of the notice) within which representations may be made in relation to the proposed variation.
(4) If, after giving notice under section 32(1) or subsection (2) of this section, the Commission decides not to impose a penalty, it shall give notice of that decision.
(5) A notice under this section shall be given by—
(a) serving a copy of the notice on the licence holder and the Council, and
(b) publishing the notice in such manner as the Commission considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them.
(1) No penalty shall be imposed under section 30 in respect of a contravention of a licence condition—
(a) where a provisional order has been made but not confirmed in respect of the contravention and no final order has been made in respect of it, unless a copy of the notice under section 32(1) has been served on the licence holder no later than six months starting with the date on which the provisional order was made,
(b) where a provisional order has been confirmed or a final order made in respect of the contravention, unless a copy of the notice under section 32(1) has been served on the licence holder no later than three months starting with the date on which the order was confirmed or (as the case may be) made.
(2) No penalty shall be imposed under section 30 in respect of a contravention of a licence condition for which no provisional or final order has been made unless a copy of the notice under section 32(1) has been served on the licence holder within twelve months from the time of the contravention.
(1) If the whole or any portion of a penalty is not paid by the date by which it is required to be paid, the unpaid balance from time to time shall carry interest at the rate for the time being specified in section 17 of the [1838 c. 110.] Judgments Act 1838.
(2) Where an application has been made under section 32(5), the penalty shall not be required to be paid until the application has been determined, withdrawn or otherwise dealt with.
(3) If a portion of a penalty has not been paid by the date required for it, the Commission may, where it considers it appropriate to do so, require so much of the penalty as has not already been paid to be paid immediately.
(1) This section applies if a licence holder on whom a penalty is imposed under section 30 is aggrieved by—
(a) the imposition of the penalty,
(b) the amount of the penalty, or
(c) the date by which the penalty is required to be paid or (as the case may be) the different dates by which portions of the penalty are required to be paid.
(2) The licence holder may apply to the court.
(3) If a copy of the notice under section 32(3) was served on the licence holder, the application to the court shall, subject to subsection (4), be made within the period of 42 days starting with the day on which the copy was served on the licence holder.
(4) If the application relates to a decision of the Commission on an application by a licence holder under section 32(5), the application to the court shall be made within the period of 42 days starting with the day on which the licence holder is notified of the decision.
(5) On an application under this section, the court may—
(a) quash the penalty,
(b) substitute a penalty of such lesser amount as the court 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 and is satisfied of one or more of the grounds mentioned in subsection (6).
(6) The grounds are—
(a) that the imposition of the penalty was not within the powers of the Commission under section 30,
(b) that any of the requirements of section 32 or 33 have not been complied with in relation to the imposition of the penalty and the interests of the licence holder have been substantially prejudiced by the non-compliance,
(c) that it was unreasonable of the Commission to require the penalty to be paid by the date concerned or (as the case may be) to require portions of it to be paid by the dates concerned.
(7) Where an application has been made under this section, the penalty shall not be required to be paid until the application has been determined, withdrawn or otherwise dealt with.
(8) Where the court substitutes a penalty of a lesser amount it may require the payment of interest on the substituted penalty at such rate, and from such date, as it considers appropriate.
(9) Where the court 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) Except as provided by this section, the validity of a penalty shall not be questioned in any legal proceedings.
(11) In this section “the court” means—
(a) in relation to England and Wales or Northern Ireland, the High Court, and
(b) in relation to Scotland, the Court of Session.
Where a penalty imposed under section 30, 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 36 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 licence holder 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.
(1) The Commission shall compile and maintain a register for the purposes of this Part.
(2) The register shall be kept at such premises and in such form as the Commission considers appropriate.
(3) The Commission shall cause the following matters to be entered in the register—
(a) the provisions of every licence,
(b) every modification, revocation or surrender of a licence,
(c) the provisions of every direction or determination made or consent or approval given under a licence,
(d) the terms of every final or provisional order made or confirmed and every revocation of such an order,
(e) every penalty imposed under section 30 and every notice under section 32(3).
(4) The duty in subsection (3) does not extend to anything of which the Commission is unaware.
(5) So far as practicable the Commission shall secure the exclusion from the register of any matter relating to the affairs of a person if the Commission considers that its inclusion would or might seriously and prejudicially affect the person’s interests.
(6) Subsection (5) does not apply if—
(a) the person concerned consents to the matter being entered in the register, or
(b) the Commission considers that entering the matter in the register would be in the public interest.
(7) If the Secretary of State considers that entry of anything in the register would be against the public interest or any person’s commercial interests, he may direct the Commission not to enter it.
(8) The Commission shall secure that the contents of the register are available for inspection by the public—
(a) during such hours as may be specified in an order made by the Secretary of State, and
(b) subject to such reasonable fees (if any) as the Commission may determine.
(9) If requested by any person to do so and subject to such reasonable fees (if any) as the Commission may determine, the Commission shall supply the person concerned with a copy (certified to be true) of the register or of an extract from it.