SCHEDULE 25 continued
(5B) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Competition Commission thinks is contrary to the public interest.
(5C) The second consideration is the need to exclude from disclosure (so far as practicable)—
(a) commercial information whose disclosure the Competition Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or
(b) information relating to the private affairs of an individual whose disclosure the Competition Commission thinks might significantly harm the individual’s interests.
(5D) The third consideration is the extent to which the disclosure of the information mentioned in sub-paragraph (5C)(a) or (b) above is necessary for the purposes of the report.”;
(c) in paragraph 15, for sub-paragraphs (1) and (2) there is substituted—
“(1) For the purposes of the law relating to defamation, absolute privilege attaches to any notice under paragraph 13(4) or 14(3) above.
(2) In giving any notice under paragraph 13(4) or 14(3) above, the Competition Commission must have regard to the following considerations before disclosing any information.
(2A) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Competition Commission thinks is contrary to the public interest.
(2B) The second consideration is the need to exclude from disclosure (so far as practicable)—
(a) commercial information whose disclosure the Competition Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or
(b) information relating to the private affairs of an individual whose disclosure the Competition Commission thinks might significantly harm the individual’s interests.
(2C) The third consideration is the extent to which the disclosure of the information mentioned in sub-paragraph (2B)(a) or (b) above is necessary for the purposes of the notice.
(2D) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in sub-paragraphs (2E) and (2F) below, in relation to any investigation by the Competition Commission for the purposes of the exercise of its functions under paragraph 13 or 14 above, as they apply for the purposes of any investigation on references under that Part—
(a) section 109 (attendance of witnesses and production of documents etc.);
(b) section 110 (enforcement of powers under section 109: general);
(c) section 111 (penalties);
(d) section 112 (penalties: main procedural requirements);
(e) section 113 (payments and interest by instalments);
(f) section 114 (appeals in relation to penalties);
(g) section 115 (recovery of penalties); and
(h) section 116 (statement of policy).
(2E) Section 110 shall, in its application by virtue of sub-paragraph (2D) above, have effect as if—
(a) subsection (2) were omitted;
(b) in subsection (4), for the words “the publication of the report of the Commission on the reference concerned” there were substituted “the sending of a copy to the Regulator under paragraph 14 of Schedule 4A to the Railways Act 1993 of the relevant changes made by the Commission in connection with the reference concerned or, if no direction has been given by the Commission under paragraph 13(1) of that Schedule to that Act in connection with the reference concerned and within the period permitted for that purpose, the latest day on which it was possible to give such a direction within the permitted period”; and
(c) in subsection (9) the words from “or section” to “section 65(3))” were omitted.
(2F) Section 111(5)(b) shall, in its application by virtue of sub-paragraph (2D) above, have effect as if for sub-paragraph (ii) there were substituted—
“(ii) if earlier, the day on which a copy of the relevant changes made by the Commission in connection with the reference concerned is sent to the Regulator under paragraph 14 of Schedule 4A to the Railways Act 1993 or, if no direction is given by the Commission under paragraph 13(1) of that Schedule to that Act in connection with the reference concerned and within the period permitted for that purpose, the latest day on which such a direction may be given within the permitted period.”.
(2G) Section 117 of the Enterprise Act 2002 (false or misleading information) shall apply in relation to functions of the Competition Commission in connection with the exercise of its functions under paragraph 13 or 14 above as it applies in relation to its functions under Part 3 of that Act but as if, in subsections (1)(a) and (2), the words “the OFT,” and “or the Secretary of State” were omitted.
(2H) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 109 to 117 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of sub-paragraph (2D) or (2G) above, have effect in relation to those sections as applied by virtue of those sub-paragraphs.
(2I) Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of those sub-paragraphs.”
31 (1) The Chiropractors Act 1994 is amended as follows.
(2) In section 33(2) (competition and anti-competitive practices)—
(a) for the words from the beginning to “orders)” there is substituted “Schedule 8 to the Enterprise Act 2002 (provision that may be contained in enforcement orders)”;
(b) for “a competition” there is substituted “an enforcement”.
(3) After section 33(2) there is inserted—
“(2A) The references to anything permitted by Schedule 8 to the Enterprise Act 2002 in sections 160(4)(a), 161(3)(a) and 164(1) of that Act shall be construed accordingly.”
(4) In section 33(3), for “A competition” there is substituted “An enforcement”.
(5) For section 33(4) there is substituted—
“(4) In this section “an enforcement order” means an order under—
(a) section 160 of the Enterprise Act 2002 (orders following failure to fulfil final undertakings); or
(b) section 161 of that Act (final orders following market investigation reports).”
(6) For section 33(5) there is substituted—
“(5) For the purposes of an enforcement order section 86(3) of the Enterprise Act 2002 as applied by section 164(2)(a) of that Act (power to apply orders to existing agreements) shall have effect in relation to a regulatory provision as it has effect in relation to an agreement.”
32 (1) The Coal Industry Act 1994 is amended as follows.
(2) In section 59 (information to be kept confidential by the Authority)—
(a) in subsection (3)(e)(v), for “the Director General of Fair Trading” there is substituted “the Office of Fair Trading”;
(b) in subsection (4), after paragraph (n) there is inserted—
“(o) the Enterprise Act 2002.”
33 (1) The Airports (Northern Ireland) Order 1994 is amended as follows.
(2) In Article 35 (supplementary provisions relating to references to the Commission), paragraphs (3) and (3A) shall cease to have effect.
(3) After Article 35 there is inserted—
(1) Every reference under Article 34 shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made.
(2) A report of the Commission on a reference under Article 34 shall not have effect (and no action shall be taken in relation to it under Article 37) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by the CAA under paragraph (3).
(3) The CAA may, if it has received representations on the subject from the Commission and is satisfied that there are special reasons why the report cannot be made within the period specified in the reference, extend that period by no more than six months.
(4) No more than one extension is possible under paragraph (3) in relation to the same reference.
(5) The CAA shall, in the case of an extension made by it under paragraph (3)—
(a) publish that extension in such manner as it considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it; and
(b) send a copy of what has been published by it under sub-paragraph (a) to the airport operator concerned and the Department.
(1) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in paragraphs (2) and (3), for the purposes of references under Article 34 as they apply for the purposes of references under that Part—
(a) section 109 (attendance of witnesses and production of documents etc.);
(b) section 110 (enforcement of powers under section 109: general);
(c) section 111 (penalties);
(d) section 112 (penalties: main procedural requirements);
(e) section 113 (payments and interest by instalments);
(f) section 114 (appeals in relation to penalties);
(g) section 115 (recovery of penalties); and
(h) section 116 (statement of policy).
(2) Section 110 shall, in its application by virtue of paragraph (1), have effect as if—
(a) subsection (2) were omitted; and
(b) in subsection (9) the words from “or section” to “section 65(3))” were omitted.
(3) Section 111(5)(b)(ii) shall, in its application by virtue of paragraph (1), have effect as if—
(a) for the words “published (or, in the case of a report under section 50 or 65, given)” there were substituted “made”;
(b) for the words “published (or given)”, in both places where they appear, there were substituted “made”; and
(c) the words “by this Part” were omitted.
(4) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 109 to 116 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of paragraph (1), have effect in relation to those sections as applied by virtue of that paragraph.
(5) Accordingly, corresponding provisions of this Order shall not have effect in relation to those sections as applied by virtue of that paragraph.”
(4) In Article 36 (reports on references)—
(a) after paragraph (2) there is inserted—
“(2A) For the purposes of Article 37(2), a conclusion contained in a report of the Commission is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted in connection with the reference concerned in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998.
(2B) If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference under Article 34 as the conclusions of the Commission, the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing.”;
(b) for paragraph (4) there is substituted—
“(4) For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Commission on a reference under Article 34.
(4A) In making any report on a reference under Article 34 the Commission must have regard to the following considerations before disclosing any information.
(4B) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Commission thinks is contrary to the public interest.
(4C) The second consideration is the need to exclude from disclosure (so far as practicable)—
(a) commercial information whose disclosure the Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or
(b) information relating to the private affairs of an individual whose disclosure the Commission thinks might significantly harm the individual’s interests.
(4D) The third consideration is the extent to which the disclosure of the information mentioned in paragraph (4C)(a) or (b) is necessary for the purposes of the report.”
(5) In Article 47 (co-ordination of exercise of functions by CAA and Director General of Fair Trading)—
(a) in paragraph (a)—
(i) for “the Director General of Fair Trading of functions under the 1973 Act or the 1980 Act” there is substituted “the Office of Fair Trading of functions under the Enterprise Act 2002”;
(ii) for “the Director” there is substituted “the Office of Fair Trading”;
(b) in paragraph (b), for “the Director” there is substituted “the Office of Fair Trading”.
(6) In Article 49 (restriction on disclosure of information)—
(a) in paragraph (2), for “the Director General of Fair Trading” there is substituted “the Office of Fair Trading”;
(b) in paragraph (3), at the end there is inserted—
“(t) the Enterprise Act 2002”.
34 (1) The Broadcasting Act 1996 is amended as follows.
(2) In section 142 (standards for transmission hit), in subsection (6), for paragraph (f) there is substituted—
“(f) the Office of Fair Trading,”.
35 (1) The Channel Tunnel Rail Link Act 1996 is amended as follows.
(2) In section 21 (duties as to exercise of regulatory functions), in subsection (7)(b)—
(a) for “the Director General of Fair Trading” there is substituted “the Office of Fair Trading”;
(b) for “he” there is substituted “it”.
(3) In section 22 (restriction of functions in relation to competition etc.)—
(a) subsection (1) shall cease to have effect;
(b) in subsection (3), for “the Director General of Fair Trading” there is substituted “the Office of Fair Trading”;
(c) in subsection (4)—
(i) for “the Director General of Fair Trading” there is substituted “the Office of Fair Trading”;
(ii) for “the Director” there is substituted “the Office of Fair Trading”.
36 (1) The Gas (Northern Ireland) Order 1996 is amended as follows.
(2) In Article 15 (licence modification references to Commission)—
(a) paragraphs (9) and (9A) shall cease to have effect;
(b) in paragraph (10), after “Articles” there is inserted “15A,”.
(3) After Article 15 there is inserted—
(1) Every reference under Article 15 shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made.
(2) A report of the Competition Commission on a reference under Article 15 shall not have effect (and no action shall be taken in relation to it under Article 17) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by the Director under paragraph (3).
(3) The Director may, if he has received representations on the subject from the Competition Commission and is satisfied that there are special reasons why the report cannot be made within the period specified in the reference, extend that period by no more than six months.
(4) No more than one extension is possible under paragraph (3) in relation to the same reference.
(5) The Director shall, in the case of an extension made by him under paragraph (3)—
(a) publish that extension in such manner as he considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it; and
(b) send a copy of what has been published by him under sub-paragraph (a) to the holder of the licence or, as the case may be, the relevant licence holders.
(1) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in paragraphs (2) and (3), for the purposes of references under Article 15 as they apply for the purposes of references under that Part—
(a) section 109 (attendance of witnesses and production of documents etc.);
(b) section 110 (enforcement of powers under section 109: general);
(c) section 111 (penalties);
(d) section 112 (penalties: main procedural requirements);
(e) section 113 (payments and interest by instalments);
(f) section 114 (appeals in relation to penalties);
(g) section 115 (recovery of penalties); and
(h) section 116 (statement of policy).
(2) Section 110 shall, in its application by virtue of paragraph (1), have effect as if—
(a) subsection (2) were omitted; and
(b) in subsection (9) the words from “or section” to “section 65(3))” were omitted.
(3) Section 111(5)(b)(ii) shall, in its application by virtue of paragraph (1), have effect as if—
(a) for the words “published (or, in the case of a report under section 50 or 65, given)” there were substituted “made”;
(b) for the words “published (or given)”, in both places where they appear, there were substituted “made”; and
(c) the words “by this Part” were omitted.
(4) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 109 to 116 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of paragraph (1), have effect in relation to those sections as applied by virtue of that paragraph.
(5) Accordingly, corresponding provisions of this Order shall not have effect in relation to those sections as applied by virtue of that paragraph.”
(4) In Article 16 (reports on licence modification references)—
(a) after paragraph (1) there is inserted—
“(1A) For the purposes of Article 17, a conclusion contained in a report of the Competition Commission is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted in connection with the reference concerned in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998.
(1B) If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference under Article 15 as the conclusions of the Competition Commission, the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing.”;
(b) for paragraph (3) there is substituted—
“(3) For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Competition Commission on a reference under Article 15.
(3A) In making any report on a reference under Article 15 the Competition Commission must have regard to the following considerations before disclosing any information.
(3B) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Competition Commission thinks is contrary to the public interest.
(3C) The second consideration is the need to exclude from disclosure (so far as practicable)—
(a) commercial information whose disclosure the Competition Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or
(b) information relating to the private affairs of an individual whose disclosure the Competition Commission thinks might significantly harm the individual’s interests.
(3D) The third consideration is the extent to which the disclosure of the information mentioned in paragraph (3C)(a) or (b) is necessary for the purposes of the report.”
(5) In Article 23 (functions with respect to competition)—
(a) paragraph (1) shall cease to have effect;
(b) in paragraph (3), for “the Director General of Fair Trading, the functions of that Director” there is substituted “the Office of Fair Trading, the functions of the Office of Fair Trading”;
(c) in paragraph (3A), for “the Director General of Fair Trading” there is substituted “the Office of Fair Trading”;
(d) in paragraph (6), for “the Director General of Fair Trading” there is substituted “the Office of Fair Trading”.
(6) In Article 27 (general functions), in paragraph (3)—
(a) for “the Director General of Fair Trading” there is substituted “the Office of Fair Trading”; and
(b) for “that Director” there is substituted “the Office of Fair Trading”.
(7) In Article 28 (publication of information and advice), for paragraph (3) there is substituted—
“(3A) The Office of Fair Trading shall consult the Director before publishing under section 6 of the Enterprise Act 2002 any information or advice which may be published by the Director under this Article.”
(8) In Article 41(2) (exclusion of certain agreements from Restrictive Trade Practices Act 1976), for “the Director General of Fair Trading” there is substituted “the Office of Fair Trading”.
37 (1) The Data Protection Act 1998 is amended as follows.
(2) In section 31 (regulatory activity), in subsection (5)(a), for “the Director General of Fair Trading” there is substituted “the Office of Fair Trading”.
38 (1) The 1998 Act is amended as follows.
(2) In section 3(4)(b) (excluded agreements), for “the Fair Trading Act 1973” there is substituted “the Enterprise Act 2002”.
(3) In section 4 (individual exemptions), for “Director” (in each place), “him” and “he” there is substituted “OFT”, “it” and “it” respectively.
(4) In section 5 (cancellation etc. of individual exemptions), for “Director” (in each place), “he” (in each place) and “his” (in both places) there is substituted “OFT”, “it” and “its” respectively.
(5) In section 6 (block exemptions)—
(a) for “Director” (in each place) there is substituted “OFT”;
(b) in subsection (6)(c), for “he” there is substituted “it”.
(6) In section 7 (block exemptions: opposition), for “Director” (in each place), and “his” (in both places) there is substituted “OFT” and “its” respectively.
(7) In section 8 (block exemptions: procedure)—
(a) for “Director” (in each place) there is substituted “OFT”;
(b) in subsection (1), for “his”, “he” and “him” there is substituted “its”, “it” and “it” respectively;
(c) in subsection (3), for “he” there is substituted “it”.
(8) In section 10 (parallel agreements)—
(a) for “Director” (in each place) there is substituted “OFT”;
(b) in subsection (8), for “his”, “him” and “he” there is substituted “its”, “it” and “it” respectively.
(9) In section 12 (requests for Director to examine agreements), for “Director” (in each place) there is substituted “OFT”.
(10) In section 13 (notification for guidance), for “Director” (in each place), “him”, “his” (in both places) and “he” there is substituted “OFT”, “the OFT”, “its” and “it” respectively.
(11) In section 14 (notification for a decision), for “Director” (in each place) and “him” there is substituted “OFT” and “the OFT” respectively.
(12) In section 15 (effect of guidance), for “Director” (in each place), “he” (in each place), “his” (in each place) and “him” (in each place) there is substituted “OFT”, “it”, “its” and “it” respectively.
(13) In section 16 (effect of a decision that the Chapter 1 prohibition has not been infringed), for “Director” (in each place), “he” (in each place), “his” (in each place) and “him” there is substituted “OFT”, “it”, “its” and “it” respectively.
(14) In section 20 (requests for Director to consider conduct), for “Director” (in each place) there is substituted “OFT”.
(15) In section 21 (notification for guidance), for “Director” (in both places), “him” and “his” there is substituted “OFT”, “the OFT” and “its” respectively.
(16) In section 22 (notification for a decision), for “Director” (in both places) and “him” there is substituted “OFT” and “the OFT” respectively.
(17) In section 23 (effect of guidance), for “Director” (in each place), “he” (in each place), “his” (in each place) and “him” (in both places) there is substituted “OFT”, “it”, “its” and “it” respectively.
(18) In section 24 (effect of a decision that the Chapter 2 prohibition has not been infringed), for “Director” (in each place), “he” (in each place), “his” (in each place) and “him” there is substituted “OFT”, “it”, “its” and “it” respectively.
(19) In section 25 (Director’s power to investigate), for “Director's” and “Director” there is substituted “OFT's” and “OFT” respectively.
(20) In section 26 (powers when conducting investigations)—
(a) in subsection (1), for “Director”, “him” (in both places) and “he” there is substituted “OFT”, “it” and “it” respectively;
(b) in subsection (5), for “Director” there is substituted “OFT”.
(21) In section 27 (power to enter premises without a warrant)—
(a) for “Director” (in each place) there is substituted “OFT”;
(b) in subsection (3), for “he” (in both places) there is substituted “it”.
(22) In section 28 (power to enter premises under a warrant)—
(a) in subsection (1), for “Director” (in both places) there is substituted “OFT”;
(b) in subsection (2)—
(i) for “Director” there is substituted “OFT”;
(ii) for “his officers whom he” there is substituted “the OFT’s officers whom the OFT”.
(23) In section 31 (decisions following an investigation), for “Director” (in both places) there is substituted “OFT”.
(24) In section 32 (directions in relation to agreements)—
(a) in subsection (1), for “Director” and “he” (in each place) there is substituted “OFT” and “it” respectively;
(b) in subsection (2), for “Director's”, “his” and “him” there is substituted “OFT's”, “its” and “it” respectively.