PART 3 continued CHAPTER 5 continued
(1) The Secretary of State may make regulations for the purposes of sections 96 to 100.
(2) The regulations may, in particular—
(a) provide for section 97(1), (2), (3) or (4) or section 100(1)(e) to apply as if any reference to a period of days or months were a reference to a period specified in the regulations for the purposes of the enactment concerned;
(b) provide for the manner in which any merger notice is authorised or required to be rejected or withdrawn, and the time at which any merger notice is to be treated as received or rejected;
(c) provide for the time at which any notice under section 97(7), (8)(b), (11) or (13) is to be treated as received;
(d) provide for the manner in which any information requested by the OFT or any other material information is authorised or required to be provided or disclosed, and the time at which such information is to be treated as provided or disclosed (including the time at which it is to be treated as provided to the satisfaction of the OFT for the purposes of section 97(6));
(e) provide for the person who gave the merger notice to be informed, in circumstances in which section 97(6) applies—
(i) of the fact that the OFT is satisfied as to the provision of the information requested by the OFT or (as the case may be) of the OFT’s decision to cancel the extension; and
(ii) of the time at which the OFT is to be treated as so satisfied or (as the case may be) of the time at which the cancellation is to be treated as having effect;
(f) provide for the person who gave the merger notice to be informed, in circumstances in which section 97(8) applies—
(i) of any decision by the OFT to cancel the extension; and
(ii) of the time at which such a cancellation is to be treated as having effect;
(g) provide for the time at which any fee is to be treated as paid;
(h) provide that a person is, or is not, to be treated, in such circumstances as may be specified in the regulations, as acting on behalf of a person authorised by regulations under this section to give a merger notice or a person who has given such a notice.
The Secretary of State may, for the purposes of determining the effect of giving a merger notice and the action which may be or is to be taken by any person in connection with such a notice, by order modify sections 97 to 101.
(1) In deciding whether to make a reference under section 22 or 33 the OFT shall have regard, with a view to the prevention or removal of uncertainty, to the need for making a decision as soon as reasonably practicable.
(2) In deciding whether to make a reference under section 45 or 62 the Secretary of State shall have regard, with a view to the prevention or removal of uncertainty, to the need for making a decision as soon as reasonably practicable.
(1) Subsection (2) applies where the relevant authority is proposing to make a relevant decision in a way which the relevant authority considers is likely to be adverse to the interests of a relevant party.
(2) The relevant authority shall, so far as practicable, consult that party about what is proposed before making that decision.
(3) In consulting the party concerned, the relevant authority shall, so far as practicable, give the reasons of the relevant authority for the proposed decision.
(4) In considering what is practicable for the purposes of this section the relevant authority shall, in particular, have regard to—
(a) any restrictions imposed by any timetable for making the decision; and
(b) any need to keep what is proposed, or the reasons for it, confidential.
(5) The duty under this section shall not apply in relation to the making of any decision so far as particular provision is made elsewhere by virtue of this Part for consultation before the making of that decision.
(6) In this section—
“the relevant authority” means the OFT, the Commission or the Secretary of State;
“relevant decision” means—
in the case of the OFT, any decision by the OFT—
as to whether to make a reference under section 22 or 33 or accept undertakings under section 73 instead of making such a reference; or
to vary under section 37 such a reference;
in the case of the Commission, any decision on the questions mentioned in section 35(1) or (3), 36(1) or (2), 47 or 63; and
in the case of the Secretary of State, any decision by the Secretary of State—
as to whether to make a reference under section 45 or 62; or
to vary under section 49 or (as the case may be) 64 such a reference; and
“relevant party” means any person who appears to the relevant authority to control enterprises which are the subject of the reference or possible reference concerned.
(1) Where the OFT decides to investigate a matter so as to enable it to decide whether to make a reference under section 22 or 33, or so as to make a report under section 44 or 61, it shall, so far as practicable, take such action as it considers appropriate to bring information about the investigation to the attention of those whom it considers might be affected by the creation of the relevant merger situation concerned or (as the case may be) the special merger situation concerned.
(2) Subsection (1) does not apply in relation to arrangements which might result in the creation of a relevant merger situation if a merger notice has been given in relation to those arrangements under section 96.
(3) The OFT shall give the Commission—
(a) such information in its possession as the Commission may reasonably require to enable the Commission to carry out its functions under this Part; and
(b) any other assistance which the Commission may reasonably require for the purpose of assisting it in carrying out its functions under this Part and which it is within the power of the OFT to give.
(4) The OFT shall give the Commission any information in its possession which has not been requested by the Commission but which, in the opinion of the OFT, would be appropriate to give to the Commission for the purpose of assisting it in carrying out its functions under this Part.
(5) The OFT and the Commission shall give the Secretary of State—
(a) such information in their possession as the Secretary of State may by direction reasonably require to enable him to carry out his functions under this Part; and
(b) any other assistance which the Secretary of State may by direction reasonably require for the purpose of assisting him in carrying out his functions under this Part and which it is within the power of the OFT or (as the case may be) the Commission to give.
(6) The OFT shall give the Secretary of State any information in its possession which has not been requested by the Secretary of State but which, in the opinion of the OFT, would be appropriate to give to the Secretary of State for the purpose of assisting him in carrying out his functions under this Part.
(7) The Commission shall have regard to any information given to it under subsection (3) or (4); and the Secretary of State shall have regard to any information given to him under subsection (5) or (6).
(8) Any direction given under subsection (5)—
(a) shall be in writing; and
(b) may be varied or revoked by a subsequent direction.
(1) As soon as reasonably practicable after the passing of this Act, the OFT shall prepare and publish general advice and information about the making of references by it under section 22 or 33.
(2) The OFT may at any time publish revised, or new, advice or information.
(3) As soon as reasonably practicable after the passing of this Act, the Commission shall prepare and publish general advice and information about the consideration by it of references under section 22 or 33 and the way in which relevant customer benefits may affect the taking of enforcement action in relation to such references.
(4) The Commission may at any time publish revised, or new, advice or information.
(5) Advice and information published under this section shall be prepared with a view to—
(a) explaining relevant provisions of this Part to persons who are likely to be affected by them; and
(b) indicating how the OFT or (as the case may be) the Commission expects such provisions to operate.
(6) Advice (or information) published by virtue of subsection (1) or (3) may include advice (or information) about the factors which the OFT or (as the case may be) the Commission may take into account in considering whether, and if so how, to exercise a function conferred by this Part.
(7) Any advice or information published by the OFT or the Commission under this section shall be published in such manner as the OFT or (as the case may be) the Commission considers appropriate.
(8) In preparing any advice or information under this section, the OFT shall consult the Commission and such other persons as it considers appropriate.
(9) In preparing any advice or information under this section, the Commission shall consult the OFT and such other persons as it considers appropriate.
(1) The OFT shall publish—
(a) any reference made by it under section 22 or 33 or any decision made by it not to make such a reference (other than a decision made by virtue of subsection (2)(b) of section 33);
(b) any variation made by it under section 37 of a reference under section 22 or 33;
(c) such information as it considers appropriate about any decision made by it under section 57(1) to bring a case to the attention of the Secretary of State;
(d) any enforcement undertaking accepted by it under section 71;
(e) any enforcement order made by it under section 72 or 76 or paragraph 2 of Schedule 7;
(f) any variation, release or revocation of such an undertaking or order;
(g) any decision made by it as mentioned in section 76(6)(b); and
(h) any decision made by it to dispense with the requirements of Schedule 10.
(2) The Commission shall publish—
(a) any cancellation by it under section 37(1) of a reference under section 33;
(b) any decision made by it under section 37(2) to treat a reference made under section 22 or 33 as if it had been made under section 33 or (as the case may be) 22;
(c) any extension by it under section 39 of the period within which a report under section 38 is to be prepared and published;
(d) any decision made by it to cancel an extension as mentioned in section 39(8)(b);
(e) any decision made by it under section 41(2) neither to accept an undertaking under section 82 nor to make an order under section 84;
(f) any decision made by it that there has been a material change of circumstances as mentioned in subsection (3) of section 41 or there is another special reason as mentioned in that subsection of that section;
(g) any cancellation by it under section 48(1) or 53(1) of a reference under section 45 or any cancellation by it under section 64(1) of a reference under section 62;
(h) any decision made by it under section 49(1) to treat—
(i) a reference made under subsection (2) or (3) of section 45 as if it had been made under subsection (4) or (as the case may be) (5) of that section; or
(ii) a reference made under subsection (4) or (5) of section 45 as if it had been made under subsection (2) or (as the case may be) (3) of that section;
(i) any extension by it under section 51 of the period within which a report under section 50 is to be prepared and published;
(j) any decision made by it under section 51(8)(b) to cancel such an extension;
(k) any extension by it under section 51 as applied by section 65(3) of the period within which a report under section 65 is to be prepared and published;
(l) any decision made by it under section 51(8)(b) as applied by section 65(3) to cancel such an extension;
(m) any decision made by it under section 64(2) to treat a reference made under subsection (2) or (3) of section 62 as if it had been made under subsection (3) or (as the case may be) (2) of that section;
(n) any decision made by it as mentioned in section 76(6)(b);
(o) any enforcement order made by it under section 76 or 81;
(p) any enforcement undertaking accepted by it under section 80;
(q) any variation, release or revocation of such an order or undertaking; and
(r) any decision made by it to dispense with the requirements of Schedule 10.
(3) The Secretary of State shall publish—
(a) any intervention notice or special intervention notice given by him;
(b) any report of the OFT under section 44 or 61 which has been received by him;
(c) any reference made by him under section 45 or 62 or any decision made by him not to make such a reference;
(d) any variation made by him under section 49 of a reference under section 45 or under section 64 of a reference under section 62;
(e) any report of the Commission under section 50 or 65 which has been received by him;
(f) any decision made by him neither to accept an undertaking under paragraph 9 of Schedule 7 nor to make an order under paragraph 11 of that Schedule;
(g) any notice given by him under section 56(1);
(h) any enforcement undertaking accepted by him under paragraph 1 of Schedule 7;
(i) any variation or release of such an undertaking;
(j) any decision made by him as mentioned in paragraph 6(6)(b) of Schedule 7; and
(k) any decision made by him to dispense with the requirements of Schedule 10.
(4) Where any person is under a duty by virtue of subsection (1), (2) or (3) to publish the result of any action taken by that person or any decision made by that person, the person concerned shall, subject to subsections (5) and (6), also publish that person’s reasons for the action concerned or (as the case may be) the decision concerned.
(5) Such reasons need not, if it is not reasonably practicable to do so, be published at the same time as the result of the action concerned or (as the case may be) as the decision concerned.
(6) Subsections (4) and (5) shall not apply in relation to any information published under subsection (1)(c).
(7) The Secretary of State shall publish his reasons for—
(a) any decision made by him under section 54(2) or 66(2); or
(b) any decision to make an order under section 58(3) or vary or revoke such an order.
(8) Such reasons may be published after—
(a) in the case of subsection (7)(a), the publication of the decision concerned; and
(b) in the case of subsection (7)(b), the making of the order or of the variation or revocation;
if it is not reasonably practicable to publish them at the same time as the publication of the decision or (as the case may be) the making of the order or variation or revocation.
(9) The Secretary of State shall publish—
(a) the report of the OFT under section 44 in relation to a matter no later than publication of his decision as to whether to make a reference under section 45 in relation to that matter; and
(b) the report of the Commission under section 50 in relation to a matter no later than publication of his decision under section 54(2) in relation to that matter.
(10) The Secretary of State shall publish—
(a) the report of the OFT under section 61 in relation to a matter no later than publication of his decision as to whether to make a reference under section 62 in relation to that matter; and
(b) the report of the Commission under section 65 in relation to a matter no later than publication of his decision under section 66(2) in relation to that matter.
(11) Where the Secretary of State has decided under section 55(2) or 66(6) to accept an undertaking under paragraph 9 of Schedule 7 or to make an order under paragraph 11 of that Schedule, he shall (after the acceptance of the undertaking or (as the case may be) the making of the order) lay details of his decision and his reasons for it, and the Commission’s report under section 50 or (as the case may be) 65, before each House of Parliament.
For the purposes of the law relating to defamation, absolute privilege attaches to any advice, guidance, notice or direction given, or decision or report made, by the OFT, the Commission or the Secretary of State in the exercise of any of their functions under this Part.
(1) The Commission may, for the purpose of any investigation on a reference made to it under this Part, give notice to any person requiring him—
(a) to attend at a time and place specified in the notice; and
(b) to give evidence to the Commission or a person nominated by the Commission for the purpose.
(2) The Commission may, for the purpose of any investigation on a reference made to it under this Part, give notice to any person requiring him—
(a) to produce any documents which—
(i) are specified or described in the notice, or fall within a category of document which is specified or described in the notice; and
(ii) are in that person’s custody or under his control; and
(b) to produce them at a time and place so specified and to a person so specified.
(3) The Commission may, for the purpose of any investigation on a reference made to it under this Part, give notice to any person who carries on any business requiring him—
(a) to supply to the Commission such estimates, forecasts, returns or other information as may be specified or described in the notice; and
(b) to supply it at a time and place, and in a form and manner, so specified and to a person so specified.
(4) A notice under this section shall include information about the possible consequences of not complying with the notice.
(5) The Commission or any person nominated by it for the purpose may, for the purpose of any investigation on a reference made to it under this Part, take evidence on oath, and for that purpose may administer oaths.
(6) The person to whom any document is produced in accordance with a notice under this section may, for the purpose of any investigation on a reference made to the Commission under this Part, copy the document so produced.
(7) No person shall be required under this section—
(a) to give any evidence or produce any documents which he could not be compelled to give or produce in civil proceedings before the court; or
(b) to supply any information which he could not be compelled to supply in evidence in such proceedings.
(8) No person shall be required, in compliance with a notice under this section, to go more than 10 miles from his place of residence unless his necessary travelling expenses are paid or offered to him.
(9) Any reference in this section to the production of a document includes a reference to the production of a legible and intelligible copy of information recorded otherwise than in legible form.
(10) 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.
(1) Where the Commission considers that a person has, without reasonable excuse, failed to comply with any requirement of a notice under section 109, it may impose a penalty in accordance with section 111.
(2) The Commission may proceed (whether at the same time or at different times) under subsection (1) and section 39(4) or (as the case may be) 51(4) (including that enactment as applied by section 65(3)) in relation to the same failure.
(3) Where the Commission considers that a person has intentionally obstructed or delayed another person in the exercise of his powers under section 109(6), it may impose a penalty in accordance with section 111.
(4) No penalty shall be imposed by virtue of subsection (1) or (3) if more than 4 weeks have passed since the publication of the report of the Commission on the reference concerned; but this subsection shall not apply in relation to any variation or substitution of the penalty which is permitted by virtue of this Part.
(5) A person, subject to subsection (6), commits an offence if he intentionally alters, suppresses or destroys any document which he has been required to produce by a notice under section 109.
(6) A person does not commit an offence under subsection (5) in relation to any act which constitutes a failure to comply with a notice under section 109 if the Commission has proceeded against that person under subsection (1) above in relation to that failure.
(7) A person who commits an offence under subsection (5) 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.
(8) The Commission shall not proceed against a person under subsection (1) in relation to an act which constitutes an offence under subsection (5) if that person has been found guilty of that offence.
(9) In deciding whether and, if so, how to proceed under subsection (1) or (3) or section 39(4) or 51(4) (including that enactment as applied by section 65(3)), the Commission shall have regard to the statement of policy which was most recently published under section 116 at the time when the failure concerned or (as the case may be) the obstruction or delay concerned occurred.
(10) The reference in this section to the production of a document includes a reference to the production of a legible and intelligible copy of information recorded otherwise than in legible form; and the reference to suppressing a document includes a reference to destroying the means of reproducing information recorded otherwise than in legible form.
(1) A penalty imposed under section 110(1) or (3) shall be of such amount as the Commission considers appropriate.
(2) The amount may, in the case of a penalty imposed under section 110(1), be a fixed amount, an amount calculated by reference to a daily rate or a combination of a fixed amount and an amount calculated by reference to a daily rate.
(3) The amount shall, in the case of a penalty imposed under section 110(3), be a fixed amount.
(4) No penalty imposed under section 110(1) shall—
(a) in the case of a fixed amount, exceed such amount as the Secretary of State may by order specify;
(b) in the case of an amount calculated by reference to a daily rate, exceed such amount per day as the Secretary of State may so specify; and
(c) in the case of a fixed amount and an amount calculated by reference to a daily rate, exceed such fixed amount and such amount per day as the Secretary of State may so specify.
(5) In imposing a penalty by reference to a daily rate—
(a) no account shall be taken of any days before the service of the notice under section 112 on the person concerned; and
(b) unless the Commission determines an earlier date (whether before or after the penalty is imposed), the amount payable shall cease to accumulate at the beginning of—
(i) the day on which the requirement of the notice concerned under section 109 is satisfied or (as the case may be) the obstruction or delay is removed; or
(ii) if earlier, the day on which the report of the Commission on the reference concerned is published (or, in the case of a report under section 50 or 65, given) or, if no such report is published (or given) within the period permitted for that purpose by this Part, the latest day on which the report may be published (or given) within the permitted period.
(6) No penalty imposed under section 110(3) shall exceed such amount as the Secretary of State may by order specify.
(7) An order under subsection (4) or (6) shall not specify—
(a) in the case of a fixed amount, an amount exceeding £30,000;
(b) in the case of an amount calculated by reference to a daily rate, an amount per day exceeding £15,000; and
(c) in the case of a fixed amount and an amount calculated by reference to a daily rate, a fixed amount exceeding £30,000 and an amount per day exceeding £15,000.
(8) Before making an order under subsection (4) or (6) the Secretary of State shall consult the Commission and such other persons as he considers appropriate.
(1) As soon as practicable after imposing a penalty under section 110(1) or (3), the Commission shall give notice of the penalty.
(2) The notice shall state—
(a) that the Commission has imposed a penalty on the person concerned;
(b) whether the penalty is of a fixed amount, of an amount calculated by reference to a daily rate or of both a fixed amount and an amount calculated by reference to a daily rate;
(c) the amount or amounts concerned and, in the case of an amount calculated by reference to a daily rate, the day on which the amount first starts to accumulate and the day or days on which it might cease to accumulate;
(d) the failure or (as the case may be) the obstruction or delay which the Commission considers gave it the power to impose the penalty;
(e) any other facts which the Commission considers justify the imposition of a penalty and the amount or amounts of the penalty;
(f) the manner in which, and place at which, the penalty is required to be paid to the Commission;
(g) the date or dates, no earlier than the end of the relevant period beginning with the date of service of the notice on the person concerned, by which the penalty or (as the case may be) different portions of it are required to be paid;
(h) that the penalty or (as the case may be) different portions of it may be paid earlier than the date or dates by which it or they are required to be paid; and
(i) that the person concerned has the right to apply under subsection (3) below or to appeal under section 114 and the main details of those rights.
(3) The person against whom the penalty was imposed may, within 14 days of the date of service on him of a notice under subsection (1), 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.
(4) A notice under this section shall be given by—
(a) serving a copy of the notice on the person on whom the penalty was imposed; and
(b) publishing the notice.
(5) In this section “relevant period” means the period of 28 days mentioned in subsection (3) of section 114 or, if another period is specified by the Secretary of State under that subsection, that period.
(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 Judgments Act 1838 (c. 110).
(2) Where an application has been made under section 112(3), 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 (and is capable of being paid immediately) to be paid immediately.
(4) Any sums received by the Commission in or towards the payment of a penalty, or interest on a penalty, shall be paid into the Consolidated Fund.
(1) This section applies if a person on whom a penalty is imposed under section 110(1) or (3) is aggrieved by—
(a) the imposition or nature of the penalty;
(b) the amount or amounts 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 person aggrieved may apply to the Competition Appeal Tribunal.
(3) If a copy of the notice under section 112(1) was served on the person on whom the penalty was imposed, the application to the Competition Appeal Tribunal shall, subject to subsection (4), be made within—
(a) the period of 28 days starting with the day on which the copy was served on the person concerned; or
(b) such other period as the Secretary of State may by order specify.
(4) If the application relates to a decision of the Commission on an application by the person on whom the penalty was imposed under section 112(3), the application to the Competition Appeal Tribunal shall be made within—
(a) the period of 28 days starting with the day on which the person concerned is notified of the decision; or
(b) such other period as the Secretary of State may by order specify.