PART 3 continued CHAPTER 4 continued
(1) The Commission may, in accordance with section 41, make an order under this section.
(2) An order under this section may contain—
(a) anything permitted by Schedule 8; and
(b) such supplementary, consequential or incidental provision as the Commission considers appropriate.
(3) An order under this section—
(a) shall come into force at such time as is determined by or under the order; and
(b) may be varied or revoked by another order.
(4) No order shall be varied or revoked under this section unless the OFT advises that such a variation or revocation is appropriate by reason of a change of circumstances.
(5) No order shall be made under this section in relation to a reference under section 22 or 33 if an undertaking has been accepted under section 82 in relation to that reference.
(1) Schedule 7 (which provides for the enforcement regime in public interest and special public interest cases) shall have effect.
(2) The OFT may advise the Secretary of State in relation to the taking by him of enforcement action under Schedule 7.
(1) An enforcement order may extend to a person’s conduct outside the United Kingdom if (and only if) he is—
(a) a United Kingdom national;
(b) a body incorporated under the law of the United Kingdom or of any part of the United Kingdom; or
(c) a person carrying on business in the United Kingdom.
(2) Nothing in an enforcement order shall have effect so as to—
(a) cancel or modify conditions in licences granted—
(i) under a patent granted under the Patents Act 1977 (c. 37) or a European patent (UK) (within the meaning of the Act of 1977); or
(ii) in respect of a design registered under the Registered Designs Act 1949 (c. 88);
by the proprietor of the patent or design; or
(b) require an entry to be made in the register of patents or the register of designs to the effect that licences under such a patent or such a design are to be available as of right.
(3) An enforcement order may prohibit the performance of an agreement already in existence when the order is made.
(4) Schedule 8 (which provides for the contents of certain enforcement orders) shall have effect.
(5) Part 1 of Schedule 9 (which enables certain enforcement orders to modify licence conditions etc. in regulated markets) shall have effect.
(6) In this Part “enforcement order” means an order made under section 72, 75, 76, 81, 83 or 84 or under paragraph 2, 5, 6, 10 or 11 of Schedule 7.
(1) An enforcement order may authorise the person making the order to give directions falling within subsection (2) to—
(a) a person specified in the directions; or
(b) the holder for the time being of an office so specified in any body of persons corporate or unincorporate.
(2) Directions fall within this subsection if they are directions—
(a) to take such action as may be specified or described in the directions for the purpose of carrying out, or ensuring compliance with, the enforcement order concerned; or
(b) to do, or refrain from doing, anything so specified or described which the person might be required by that order to do or refrain from doing.
(3) An enforcement order may authorise the person making the order to vary or revoke any directions so given.
(4) The court may by order require any person who has failed to comply with directions given by virtue of this section to comply with them, or otherwise remedy his failure, within such time as may be specified in the order.
(5) Where the directions related to anything done in the management or administration of a body of persons corporate or unincorporate, the court may by order require the body of persons concerned or any officer of it to comply with the directions, or otherwise remedy the failure to comply with them, within such time as may be specified in the order.
(6) An order under subsection (4) or (5) shall be made on the application of the person authorised by virtue of this section to give the directions concerned.
(7) An order under subsection (4) or (5) may provide for all the costs or expenses of, or incidental to, the application for the order to be met by any person in default or by any officers of a body of persons corporate or unincorporate who are responsible for its default.
(8) 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) This section applies in relation to any order under section 75, 83 or 84 or under paragraph 5, 10 or 11 of Schedule 7.
(2) The order or any explanatory material accompanying the order shall state—
(a) the actions that the persons or description of persons to whom the order is addressed must do or (as the case may be) refrain from doing;
(b) the date on which the order comes into force;
(c) the possible consequences of not complying with the order; and
(d) the section of this Part under which a review can be sought in relation to the order.
(1) The provision which may be contained in an enforcement undertaking is not limited to the provision which is permitted by Schedule 8.
(2) In this Part “enforcement undertaking” means an undertaking under section 71, 73, 80 or 82 or under paragraph 1, 3 or 9 of Schedule 7.
Schedule 10 (which provides for the procedure for accepting certain enforcement undertakings and making certain enforcement orders and for their termination) shall have effect.
(1) The OFT shall compile and maintain a register for the purposes of this Part.
(2) The register shall be kept in such form as the OFT considers appropriate.
(3) The OFT shall ensure that the following matters are entered in the register—
(a) the provisions of any enforcement undertaking accepted under this Part;
(b) the provisions of any enforcement order made under this Part;
(c) the details of any variation, release or revocation of such an undertaking or order; and
(d) the details of any consent given by the Commission under section 77(2) or (3) or 78(2) or by the Secretary of State under paragraph 7(2) or (3) or 8(2) of Schedule 7.
(4) The duty in subsection (3) does not extend to anything of which the OFT is unaware.
(5) The Commission and the Secretary of State shall inform the OFT of any matters which are to be included in the register by virtue of subsection (3) and which relate to enforcement undertakings accepted by them, enforcement orders made by them or consents given by them.
(6) The OFT shall ensure that the contents of the register are available to the public—
(a) during (as a minimum) 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 OFT may determine.
(7) If requested by any person to do so and subject to such reasonable fees (if any) as the OFT may determine, the OFT shall supply the person concerned with a copy (certified to be true) of the register or of an extract from it.
(1) The OFT shall keep under review—
(a) the carrying out of any enforcement undertaking or any enforcement order; and
(b) compliance with the prohibitions in sections 77(2) and (3) and 78(2) and in paragraphs 7(2) and (3) and 8(2) of Schedule 7.
(2) The OFT shall, in particular, from time to time consider—
(a) whether an enforcement undertaking or enforcement order has been or is being complied with;
(b) whether, by reason of any change of circumstances, an enforcement undertaking is no longer appropriate and—
(i) one or more of the parties to it can be released from it; or
(ii) it needs to be varied or to be superseded by a new enforcement undertaking; and
(c) whether, by reason of any change of circumstances, an enforcement order is no longer appropriate and needs to be varied or revoked.
(3) The OFT shall give the Commission or (as the case may be) the Secretary of State such advice as it considers appropriate in relation to—
(a) any possible variation or release by the Commission or (as the case may be) the Secretary of State of an enforcement undertaking accepted by it or (as the case may be) him;
(b) any possible new enforcement undertaking to be accepted by the Commission or (as the case may be) the Secretary of State so as to supersede another enforcement undertaking given to the Commission or (as the case may be) the Secretary of State;
(c) any possible variation or revocation by the Commission or (as the case may be) the Secretary of State of an enforcement order made by the Commission or (as the case may be) the Secretary of State;
(d) any possible enforcement undertaking to be accepted by the Commission or (as the case may be) the Secretary of State instead of an enforcement order or any possible enforcement order to be made by the Commission or (as the case may be) the Secretary of State instead of an enforcement undertaking;
(e) the enforcement by virtue of section 94(6) to (8) of any enforcement undertaking or enforcement order; or
(f) the enforcement by virtue of section 95(4) and (5) of the prohibitions in sections 77(2) and (3) and 78(2) and in paragraphs 7(2) and (3) and 8(2) of Schedule 7.
(4) The OFT shall take such action as it considers appropriate in relation to—
(a) any possible variation or release by it of an enforcement undertaking accepted by it;
(b) any possible new enforcement undertaking to be accepted by it so as to supersede another enforcement undertaking given to it;
(c) any possible variation or revocation by it of an enforcement order made by it;
(d) any possible enforcement undertaking to be accepted by it instead of an enforcement order or any possible enforcement order to be made by it instead of an enforcement undertaking;
(e) the enforcement by it by virtue of section 94(6) of any enforcement undertaking or enforcement order; or
(f) the enforcement by it by virtue of section 95(4) and (5) of the prohibitions in sections 77(2) and (3) and 78(2) and in paragraphs 7(2) and (3) and 8(2) of Schedule 7.
(5) The OFT shall keep under review the effectiveness of enforcement undertakings accepted under this Part and enforcement orders made under this Part.
(6) The OFT shall, whenever requested to do so by the Secretary of State and otherwise from time to time, prepare a report of its findings under subsection (5).
(7) The OFT shall—
(a) give any report prepared by it under subsection (6) to the Commission;
(b) give a copy of the report to the Secretary of State; and
(c) publish the report.
(1) Subsections (2) and (3) apply where—
(a) the Commission is considering whether to accept undertakings under section 80 or 82; or
(b) the Secretary of State is considering whether to accept undertakings under paragraph 1, 3 or 9 of Schedule 7.
(2) The Commission or (as the case may be) the Secretary of State (in this section “the relevant authority”) may require the OFT to consult with such persons as the relevant authority considers appropriate with a view to discovering whether they will offer undertakings which the relevant authority would be prepared to accept under section 80 or 82 or (as the case may be) paragraph 1, 3 or 9 of Schedule 7.
(3) The relevant authority may require the OFT to report to the relevant authority on the outcome of the OFT’s consultations within such period as the relevant authority may require.
(4) A report under subsection (3) shall, in particular, contain advice from the OFT as to whether any undertakings offered should be accepted by the relevant authority under section 80 or 82 or (as the case may be) paragraph 1, 3 or 9 of Schedule 7.
(5) The powers conferred on the relevant authority by subsections (1) to (4) are without prejudice to the power of the relevant authority to consult the persons concerned itself.
(6) If asked by the relevant authority for advice in relation to the taking of enforcement action (whether or not by way of undertaking) in a particular case, the OFT shall give such advice as it considers appropriate.
(1) This section applies to any enforcement undertaking or enforcement order.
(2) Any person to whom such an undertaking or order relates shall have a duty to comply with it.
(3) The duty shall be owed to any person who may be affected by a contravention of the undertaking or (as the case may be) order.
(4) Any breach of the duty which causes such a person to sustain loss or damage shall be actionable by him.
(5) In any proceedings brought under subsection (4) against a person to whom an enforcement undertaking or an enforcement order relates it shall be a defence for that person to show that he took all reasonable steps and exercised all due diligence to avoid contravening the undertaking or (as the case may be) order.
(6) Compliance with an enforcement undertaking or an enforcement order shall also be enforceable by civil proceedings brought by the OFT for an injunction or for interdict or for any other appropriate relief or remedy.
(7) Compliance with an undertaking under section 80 or 82, an order made by the Commission under section 76 or an order under section 81, 83 or 84, 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.
(8) Compliance with an undertaking under paragraph 1, 3 or 9 of Schedule 7, an order made by the Secretary of State under paragraph 2 of that Schedule or an order under paragraph 5, 6, 10 or 11 of that Schedule, shall also be enforceable by civil proceedings brought by the Secretary of State for an injunction or for interdict or for any other appropriate relief or remedy.
(9) Subsections (6) to (8) shall not prejudice any right that a person may have by virtue of subsection (4) to bring civil proceedings for contravention or apprehended contravention of an enforcement undertaking or an enforcement order.
(1) The obligation to comply with section 77(2) or (3) or 78(2) or paragraph 7(2) or (3) or 8(2) of Schedule 7 shall be a duty owed to any person who may be affected by a contravention of the enactment concerned.
(2) Any breach of the duty which causes such a person to sustain loss or damage shall be actionable by him.
(3) In any proceedings brought under subsection (2) against a person who has an obligation to comply with section 77(2) or (3) or 78(2) or paragraph 7(2) or (3) or 8(2) of Schedule 7 it shall be a defence for that person to show that he took all reasonable steps and exercised all due diligence to avoid contravening the enactment concerned.
(4) Compliance with section 77(2) or (3) or 78(2) shall also be enforceable by civil proceedings brought by the OFT or the Commission for an injunction or for interdict or for any other appropriate relief or remedy.
(5) Compliance with paragraph 7(2) or (3) or 8(2) of Schedule 7 shall also be enforceable by civil proceedings brought by the OFT or the Secretary of State for an injunction or for interdict or for any other appropriate relief or remedy.
(6) Subsections (4) and (5) shall not prejudice any right that a person may have by virtue of subsection (2) to bring civil proceedings for contravention or apprehended contravention of section 77(2) or (3) or 78(2) or paragraph 7(2) or (3) or 8(2) of Schedule 7.
(1) A person authorised to do so by regulations under section 101 may give notice to the OFT of proposed arrangements which might result in the creation of a relevant merger situation.
(2) Any such notice (in this Part a “merger notice”)—
(a) shall be in the prescribed form; and
(b) shall state that the existence of the proposal has been made public.
(3) No reference shall be made under section 22, 33 or 45 in relation to—
(a) arrangements of which notice is given under subsection (1) above or arrangements which do not differ from them in any material respect; or
(b) the creation of any relevant merger situation which is, or may be, created in consequence of carrying such arrangements into effect;
if the period for considering the merger notice has expired without a reference being made under that section in relation to those arrangements.
(4) Subsection (3) is subject to section 100.
(5) In this section and sections 99(5)(c) and 100(1)(c) “prescribed” means prescribed by the OFT by notice having effect for the time being and published in the London, Edinburgh and Belfast Gazettes.
(6) In this Part “notified arrangements” means arrangements of which notice is given under subsection (1) above or arrangements not differing from them in any material respect.
(1) The period for considering a merger notice is, subject as follows, the period of 20 days beginning with the first day after—
(a) the notice has been received by the OFT; and
(b) any fee payable by virtue of section 121 to the OFT in respect of the notice has been paid.
(2) Where no intervention notice is in force in relation to the matter concerned, the OFT may by notice to the person who gave the merger notice extend by a further 10 days the period for considering the merger notice.
(3) Where an intervention notice is in force in relation to the matter concerned and there has been no extension under subsection (2), the OFT may by notice to the person who gave the merger notice extend by a further 20 days the period for considering the merger notice.
(4) Where an intervention notice is in force in relation to the matter concerned and there has been an extension under subsection (2), the OFT may by notice to the person who gave the merger notice extend the period for considering the merger notice by a further number of days which, including any extension already made under subsection (2), does not exceed 20 days.
(5) The OFT may by notice to the person who gave the merger notice extend the period for considering a merger notice if the OFT considers that the person has failed to provide, within the period stated in a notice under section 99(2) and in the authorised or required manner, information requested of him in that notice.
(6) An extension under subsection (5) shall be for the period until the person concerned provides the information to the satisfaction of the OFT or, if earlier, the cancellation by the OFT of the extension.
(7) The OFT may by notice to the person who gave the merger notice extend the period for considering a merger notice if the OFT is seeking undertakings under section 73 or (as the case may be) the Secretary of State is seeking undertakings under paragraph 3 of Schedule 7.
(8) An extension under subsection (7) shall be for the period beginning with the receipt of the notice under that subsection and ending with the earliest of the following events—
(a) the giving of the undertakings concerned;
(b) the expiry of the period of 10 days beginning with the first day after the receipt by the OFT of a notice from the person from whom the undertakings are being sought stating that he does not intend to give the undertakings; or
(c) the cancellation by the OFT of the extension.
(9) The Secretary of State may by notice to the person who gave the merger notice extend the period for considering a merger notice if, by virtue of paragraph 3(6) of Schedule 7, he decides to delay a decision as to whether to make a reference under section 45.
(10) An extension under subsection (9) shall be for the period of the delay.
(11) The OFT may by notice to the person who gave the merger notice extend the period for considering a merger notice if the European Commission is considering a request made, in relation to the matter concerned, by the United Kingdom (whether alone or with others) under article 22(3) of the European Merger Regulations (but is not yet proceeding with the matter in pursuance of such a request).
(12) An extension under subsection (11) shall be for the period beginning with the receipt of the notice under that subsection and ending with the receipt of a notice under subsection (13).
(13) The OFT shall, in connection with any notice given by it under subsection (11), by notice inform the person who gave the merger notice of the completion by the European Commission of its consideration of the request of the United Kingdom.
(1) A notice under section 97(2), (3), (4), (5), (7), (9) or (11) shall be given, before the end of the period for considering the merger notice, to the person who gave the merger notice.
(2) A notice under section 97(5)—
(a) shall also be given within 5 days of the end of the period within which the information is to be provided and which is stated in the notice under section 99(2); and
(b) shall also inform the person who gave the merger notice of—
(i) the OFT’s opinion as mentioned in section 97(5); and
(ii) the OFT’s intention to extend the period for considering a merger notice.
(3) In determining for the purposes of section 97(1), (2), (3), (4) or (8)(b) or subsection (2)(a) above any period which is expressed in the enactment concerned as a period of days or number of days no account shall be taken of—
(a) Saturday, Sunday, Good Friday and Christmas Day; and
(b) any day which is a bank holiday in England and Wales.
(4) Any reference in this Part (apart from in section 97(1) and section 99(1)) to the period for considering a merger notice shall, if that period is extended by virtue of any one or more of subsections (2), (3), (4) (5), (7), (9) and (11) of section 97 in relation to a particular case, be construed in relation to that case as a reference to that period as so extended; but only one extension is possible under section 97(2), (3) or (4).
(5) Where the period for considering a merger notice is extended or further extended by virtue of section 97, the period as extended or (as the case may be) further extended shall, subject to subsections (6) and (7), be calculated by taking the period being extended and adding to it the period of the extension (whether or not those periods overlap in time).
(6) Subsection (7) applies where—
(a) the period for considering a merger notice is further extended;
(b) the further extension and at least one previous extension is made under one or more of subsections (5), (7), (9) and (11) of section 97; and
(c) the same days or fractions of days are included in or comprise the further extension and are included in or comprise at least one such previous extension.
(7) In calculating the period of the further extension, any days or fractions of days of the kind mentioned in subsection (6)(c) shall be disregarded.
(1) The OFT shall, so far as practicable and when the period for considering any merger notice begins, take such action as the OFT considers appropriate to bring—
(a) the existence of the proposal;
(b) the fact that the merger notice has been given; and
(c) the date on which the period for considering the notice may expire;
to the attention of those whom the OFT considers would be affected if the arrangements were carried into effect.
(2) The OFT may by notice to the person who gave the merger notice request him to provide the OFT with such information as the OFT or (as the case may be) the Secretary of State may require for the purpose of carrying out its or (as the case may be) his functions in relation to the merger notice.
(3) A notice under subsection (2) shall state—
(a) the information required;
(b) the period within which the information is to be provided; and
(c) the possible consequences of not providing the information within the stated period and in the authorised or required manner.
(4) A notice by the OFT under subsection (2) shall be given, before the end of the period for considering the merger notice, to the person who gave the merger notice.
(5) The OFT may, at any time before the end of the period for considering any merger notice, reject the notice if—
(a) the OFT suspects that any information given in respect of the notified arrangements (whether in the merger notice or otherwise) by the person who gave the notice or any connected person is in any material respect false or misleading;
(b) the OFT suspects that it is not proposed to carry the notified arrangements into effect;
(c) any prescribed information is not given in the merger notice or any information requested by notice under subsection (2) is not provided as required; or
(d) the OFT considers that the notified arrangements are, or if carried into effect would result in, a concentration with a Community dimension within the meaning of the European Merger Regulations.
(6) In this section and section 100 “connected person”, in relation to the person who gave a merger notice, means—
(a) any person who, for the purposes of section 127, is associated with him; or
(b) any subsidiary of the person who gave the merger notice or of any person so associated with him.
(1) Section 96(3) does not prevent any reference being made to the Commission if—
(a) before the end of the period for considering the merger notice, the OFT rejects the notice under section 99(5);
(b) before the end of that period, any of the enterprises to which the notified arrangements relate cease to be distinct from each other;
(c) any information (whether prescribed information or not) that—
(i) is, or ought to be, known to the person who gave the merger notice or any connected person; and
(ii) is material to the notified arrangements;
is not disclosed to the OFT by such time before the end of that period as may be specified in regulations under section 101;
(d) at any time after the merger notice is given but before the enterprises to which the notified arrangements relate cease to be distinct from each other, any of those enterprises ceases to be distinct from any enterprise other than an enterprise to which those arrangements relate;
(e) the six months beginning with the end of the period for considering the merger notice expires without the enterprises to which the notified arrangements relate ceasing to be distinct from each other;
(f) the merger notice is withdrawn; or
(g) any information given in respect of the notified arrangements (whether in the merger notice or otherwise) by the person who gave the notice or any connected person is in any material respect false or misleading.
(2) Subsection (3) applies where—
(a) two or more transactions which have occurred, or, if any arrangements are carried into effect, will occur, may be treated for the purposes of a reference under section 22, 33 or 45 as having occurred simultaneously on a particular date; and
(b) section 96(3) does not prevent such a reference in relation to the last of those transactions.
(3) Section 96(3) does not prevent such a reference in relation to any of those transactions which actually occurred less than six months before—
(a) that date; or
(b) the actual occurrence of another of those transactions in relation to which such a reference may be made (whether or not by virtue of this subsection).
(4) In determining for the purposes of subsections (2) and (3) the time at which any transaction actually occurred, no account shall be taken of any option or other conditional right until the option is exercised or the condition is satisfied.
(5) In this section references to the enterprises to which the notified arrangements relate are references to those enterprises that would have ceased to be distinct from one another if the arrangements mentioned in the merger notice concerned had been carried into effect at the time when the notice was given.