Office of Public Sector Information
PART 4 continued CHAPTER 2 continued
(1) Subsection (2) applies where the Secretary of State has received a report of the Commission which—
(a) has been prepared under section 142;
(b) contains the decisions that there is one or more than one adverse effect on competition and, on the question mentioned in section 141(4)(a) and in relation to at least one such adverse effect, that action should be taken by it; and
(c) has been given to the Secretary of State as required by section 143(3).
(2) The Secretary of State shall decide whether—
(a) any eligible public interest consideration is relevant; or
(b) any eligible public interest considerations are relevant;
to any action which is mentioned in the report by virtue of section 141(4)(a) and (c) and which the Commission should take for the purpose of remedying, mitigating or preventing any adverse effect on competition concerned or any detrimental effect on customers so far as it has resulted or may be expected to result from any adverse effect on competition.
(3) The Secretary of State shall make and publish his decision under subsection (2) within the period of 90 days beginning with the receipt of the report of the Commission under section 142.
(4) In this section “eligible public interest consideration” means a public interest consideration which—
(a) was mentioned in the intervention notice concerned; and
(b) was not disregarded by the Commission for the purposes of its report under section 142.
(1) Subsection (2) applies where the Secretary of State—
(a) has decided under subsection (2) of section 146 within the period required by subsection (3) of that section that an eligible public interest consideration is relevant as mentioned in subsection (2) of that section or eligible public interest considerations are so relevant; and
(b) has published his decision within the period required by subsection (3) of that section.
(2) The Secretary of State may, in relation to any adverse effect on competition identified in the report concerned, take such action under section 159 or 161 as he considers to be—
(a) reasonable and practicable—
(i) to remedy, mitigate or prevent the adverse effect on competition concerned; or
(ii) to remedy, mitigate or prevent any detrimental effect on customers so far as it has resulted from, or may be expected to result from, the adverse effect on competition; and
(b) appropriate in the light of the eligible public interest consideration concerned or (as the case may be) the eligible public interest considerations concerned.
(3) In making a decision under subsection (2), the Secretary of State shall, in particular, have regard to—
(a) the need to achieve as comprehensive a solution as is reasonable and practicable to the adverse effect on competition concerned and any detrimental effects on customers so far as resulting from the adverse effect on competition; and
(b) the report of the Commission under section 142.
(4) In having regard by virtue of subsection (3) to the report of the Commission under section 142, the Secretary of State shall not challenge the decision of the Commission contained in the report that there is one or more than one adverse effect on competition.
(5) In making a decision under subsection (2), the Secretary of State may, in particular, have regard to the effect of any action on any relevant customer benefits of the feature or features of the market concerned.
(6) The Secretary of State shall take no action under subsection (2) to remedy, mitigate or prevent any detrimental effect on customers so far as it may be expected to result from the adverse effect on competition concerned if—
(a) no detrimental effect on customers has resulted from the adverse effect on competition; and
(b) the adverse effect on competition is not being remedied, mitigated or prevented.
(7) In this section “eligible public interest consideration” has the same meaning as in section 146.
(1) If—
(a) the Secretary of State fails to make and publish his decision under subsection (2) of section 146 within the period required by subsection (3) of that section; or
(b) the Secretary of State decides that no eligible public interest consideration is relevant as mentioned in subsection (2) of that section;
the Commission shall proceed under section 138 as if the report had been prepared and published under section 136 within the period permitted by section 137.
(2) The Commission shall publish the report which has been prepared by it under section 142 (if still unpublished) as soon as it becomes able to proceed by virtue of subsection (1).
(3) The Commission shall, at the same time as its report is published under subsection (2), give a copy of it—
(a) in the case of a reference under section 131, to the OFT; and
(b) in the case of a reference under section 132, to any Minister of the Crown who made the reference (other than the Secretary of State) and to the OFT.
(4) Where a reference has been made by the OFT under section 131 or by the appropriate Minister under section 132 in circumstances in which a reference could have been made by a relevant sectoral regulator under section 131 as it has effect by virtue of a relevant sectoral enactment, the Commission shall, at the same time as its report is published under subsection (2), give a copy of it to the relevant sectoral regulator concerned.
(5) Where a reference has been made by a relevant sectoral regulator under section 131 as it has effect by virtue of a relevant sectoral enactment, the Commission shall, at the same time as its report is published under subsection (2), give a copy of it to the OFT.
(6) In relation to proceedings by virtue of subsection (1), the reference in section 138(3) to decisions of the Commission included in its report by virtue of section 134(4) shall be construed as a reference to decisions which were included in the report of the Commission by virtue of section 141(4).
(7) Where the Commission, in proceeding by virtue of subsection (1), intends to proceed in a way which is not consistent with its decisions as included in its report by virtue of section 141(4), it shall not so proceed without the consent of the Secretary of State.
(8) The Secretary of State shall not withhold his consent under subsection (7) unless he believes that the proposed alternative way of proceeding will operate against the public interest.
(9) For the purposes of subsection (8) a proposed alternative way of proceeding will operate against the public interest only if any eligible public interest consideration or considerations outweigh the considerations which have led the Commission to propose proceeding in that way.
(10) In deciding whether to withhold his consent under subsection (7), the Secretary of State shall accept the Commission’s view of what, if the only relevant consideration were how to remedy, mitigate or prevent the adverse effect on competition concerned or any detrimental effect on customers so far as resulting from the adverse effect on competition, would be the most appropriate way to proceed.
(11) In this section “eligible public interest consideration” has the same meaning as in section 146.
(1) An intervention notice under section 139(2) shall state—
(a) the proposed undertaking which may be accepted by the OFT;
(b) the notice under section 155(1) or (4);
(c) the public interest consideration or considerations which are, or may be, relevant to the case; and
(d) where any public interest consideration concerned is not finalised, the proposed timetable for finalising it.
(2) Where the Secretary of State believes that it is or may be the case that two or more public interest considerations are relevant to the case, he may decide not to mention in the intervention notice such of those considerations as he considers appropriate.
(3) The Secretary of State may at any time revoke an intervention notice which has been given under section 139(2) and which is in force.
(4) An intervention notice under section 139(2) shall come into force when it is given and shall cease to be in force on the occurrence of any of the events mentioned in subsection (5).
(5) The events are—
(a) the acceptance by the OFT with the consent of the Secretary of State of an undertaking which is the same as the proposed undertaking mentioned in the intervention notice by virtue of subsection (1)(a) or which does not differ from it in any material respect;
(b) the decision of the OFT to proceed neither with the proposed undertaking mentioned in the intervention notice by virtue of subsection (1)(a) nor a proposed undertaking which does not differ from it in any material respect; or
(c) the decision of the Secretary of State to revoke the intervention notice concerned.
(1) Where an intervention notice under section 139(2) is in force, the OFT shall not, without the consent of the Secretary of State, accept the proposed undertaking concerned or a proposed undertaking which does not differ from it in any material respect.
(2) The Secretary of State shall withhold his consent if he believes that it is or may be the case that the proposed undertaking will, if accepted, operate against the public interest.
(3) For the purposes of subsection (2) a proposed undertaking will, if accepted, operate against the public interest only if any public interest consideration which is mentioned in the intervention notice concerned and has been finalised, or any public interest considerations which are so mentioned and have been finalised, outweigh the considerations which have led the OFT to propose accepting the undertaking.
(4) In making his decision under subsection (2) the Secretary of State shall accept the OFT’s view of what undertakings, if the only relevant consideration were how to remedy, mitigate or prevent the adverse effect on competition concerned or any detrimental effect on customers so far as resulting from the adverse effect on competition, would be most appropriate.
(5) Where a public interest consideration which is mentioned in the intervention notice concerned is not finalised on the giving of the notice, the Secretary of State shall not make his decision as to whether to give his consent under this section before—
(a) the end of the period of 24 weeks beginning with the giving of the intervention notice; or
(b) if earlier, the date on which the public interest consideration concerned has been finalised.
(6) Subject to subsections (2) to (5), the Secretary of State shall not withhold his consent under this section.
(1) Where an intervention notice under section 139(1) comes into force in relation to a market investigation reference, sections 134(1), (4), (6) and (7), 136(1) to (6), 137(1) to (6) and 138 shall cease to apply in relation to that reference.
(2) Where the Secretary of State revokes an intervention notice which has been given under section 139(1), the Commission shall instead proceed under sections 134 and 136 to 138.
(3) Where the Commission is proceeding by virtue of subsection (2), the period within which the Commission shall prepare and publish its report under section 136 shall be extended by an additional period of 20 days.
(4) Where the Commission terminates its investigation under section 145(1), the Commission shall proceed under sections 134 and 136 to 138.
(5) Where the Commission is proceeding by virtue of subsection (4), the period within which the Commission shall prepare and publish its report under section 136 shall be extended by an additional period of 20 days.
(6) In determining the period of 20 days mentioned in subsection (3) or (5) 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.
(1) The OFT shall, in considering whether to make a reference under section 131, bring to the attention of the Secretary of State any case which it believes raises any consideration specified in section 153 unless it believes that the Secretary of State would consider any such consideration immaterial in the context of the particular case.
(2) The Commission shall, in investigating any reference made to it under section 131 or 132 within the previous four months, bring to the attention of the Secretary of State any case which it believes raises any consideration specified in section 153 unless it believes that the Secretary of State would consider any such consideration immaterial in the context of the particular case.
(3) The OFT and the Commission shall bring to the attention of the Secretary of State any representations about exercising his power under section 153(3) which have been made to the OFT or (as the case may be) the Commission.
(1) The interests of national security are specified in this section.
(2) In subsection (1) “national security” includes public security; and in this subsection “public security” has the same meaning as in article 21(3) of Council Regulation (EEC) No. 4064/89 of 21st December 1989 on the control of concentrations between undertakings as amended by Council Regulation (EC) No. 1310/97 of 30th June 1997.
(3) The Secretary of State may by order modify this section for the purpose of specifying in this section a new consideration or removing or amending any consideration which is for the time being specified in this section.
(4) An order under this section may apply in relation to cases under consideration by the OFT, by the Secretary of State, by the appropriate Minister (other than the Secretary of State acting alone) or by the Commission before the making of the order as well as cases under consideration on or after the making of the order.
(1) Subsection (2) applies if the OFT considers that it has the power to make a reference under section 131 and otherwise intends to make such a reference.
(2) The OFT may, instead of making such a reference and for the purpose of remedying, mitigating or preventing—
(a) any adverse effect on competition concerned; or
(b) any detrimental effect on customers so far as it has resulted from, or may be expected to result from, the adverse effect on competition;
accept, from such persons as it considers appropriate, undertakings to take such action as it considers appropriate.
(3) In proceeding under subsection (2), the OFT shall, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to the adverse effect on competition concerned and any detrimental effects on customers so far as resulting from the adverse effect on competition.
(4) In proceeding under subsection (2), the OFT may, in particular, have regard to the effect of any action on any relevant customer benefits of the feature or features of the market concerned.
(5) The OFT shall take no action under subsection (2) to remedy, mitigate or prevent any detrimental effect on customers so far as it may be expected to result from the adverse effect on competition concerned if—
(a) no detrimental effect on customers has resulted from the adverse effect on competition; and
(b) the adverse effect on competition is not being remedied, mitigated or prevented.
(6) An undertaking under this section—
(a) shall come into force when accepted;
(b) may be varied or superseded by another undertaking; and
(c) may be released by the OFT.
(7) The OFT shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or releasing an undertaking under this section.
(8) This section is subject to sections 150 and 155.
(1) Before accepting an undertaking under section 154 (other than an undertaking under that section which varies an undertaking under that section but not in any material respect), the OFT shall—
(a) publish notice of the proposed undertaking; and
(b) consider any representations made in accordance with the notice and not withdrawn.
(2) A notice under subsection (1) shall state—
(a) that the OFT proposes to accept the undertaking;
(b) the purpose and effect of the undertaking;
(c) the situation that the undertaking is seeking to deal with;
(d) any other facts which the OFT considers justify the acceptance of the undertaking;
(e) a means of gaining access to an accurate version of the proposed undertaking at all reasonable times; and
(f) the period (not less than 15 days starting with the date of publication of the notice) within which representations may be made in relation to the proposed undertaking.
(3) The matters to be included in a notice under subsection (1) by virtue of subsection (2) shall, in particular, include—
(a) the terms of the reference under section 131 which the OFT considers that it has power to make and which it otherwise intends to make; and
(b) the adverse effect on competition, and any detrimental effect on customers so far as resulting from the adverse effect on competition, which the OFT has identified.
(4) The OFT shall not accept the undertaking with modifications unless it—
(a) publishes notice of the proposed modifications; and
(b) considers any representations made in accordance with the notice and not withdrawn.
(5) A notice under subsection (4) 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 publication of the notice under subsection (4)) within which representations may be made in relation to the proposed modifications.
(6) If, after publishing notice under subsection (1) or (4), the OFT decides—
(a) not to accept the undertaking concerned; and
(b) not to proceed by virtue of subsection (8) or (9);
it shall publish notice of that decision.
(7) As soon as practicable after accepting an undertaking to which this section applies, the OFT shall—
(a) serve a copy of the undertaking on any person by whom it is given; and
(b) publish the undertaking.
(8) The requirements of subsection (4) (and those of subsection (1)) shall not apply if the OFT—
(a) has already published notice under subsection (1) but not subsection (4) in relation to the proposed undertaking; and
(b) considers that the modifications which are now being proposed are not material in any respect.
(9) The requirements of subsection (4) (and those of subsection (1)) shall not apply if the OFT—
(a) has already published notice under subsections (1) and (4) in relation to the matter concerned; and
(b) considers that the further modifications which are now being proposed do not differ in any material respect from the modifications in relation to which notice was last given under subsection (4).
(10) Paragraphs 6 to 8 (but not paragraph 9) of Schedule 10 (procedural requirements before terminating undertakings) shall apply in relation to the proposed release of undertakings under section 154 (other than in connection with accepting an undertaking under that section which varies or supersedes an undertaking under that section) as they apply in relation to the proposed release of undertakings under section 73.
(1) No market investigation reference shall be made by the OFT or the appropriate Minister in relation to any feature, or combination of features, of a market in the United Kingdom for goods or services if—
(a) the OFT has accepted an undertaking or group of undertakings under section 154 within the previous 12 months; and
(b) the goods or services to which the undertaking or group of undertakings relates are of the same description as the goods or services to which the feature, or combination of features, relates.
(2) Subsection (1) does not prevent the making of a market investigation reference if—
(a) the OFT considers that any undertaking concerned has been breached and has given notice of that fact to the person responsible for giving the undertaking; or
(b) the person responsible for giving any undertaking concerned supplied, in connection with the matter, information to the OFT which was false or misleading in a material respect.
(1) Subsection (2) applies where—
(a) a market investigation reference has been made;
(b) a report has been published under section 136 within the period permitted by section 137 or (as the case may be) a report prepared under section 142 and given to the Secretary of State under section 143(3) within the period permitted by section 144 has been published; and
(c) the market investigation reference concerned is not finally determined.
(2) The relevant authority may, for the purpose of preventing pre-emptive action, accept, from such persons as the relevant authority considers appropriate, undertakings to take such action as the relevant authority considers appropriate.
(3) An undertaking under this section—
(a) shall come into force when accepted;
(b) may be varied or superseded by another undertaking; and
(c) may be released by the relevant authority.
(4) An undertaking under this section shall, if it has not previously ceased to be in force, cease to be in force when the market investigation reference is finally determined.
(5) The relevant authority shall, as soon as reasonably practicable, consider any representations received by the relevant authority in relation to varying or releasing an undertaking under this section.
(6) In this section and section 158—
“pre-emptive action” means action which might impede the taking of any action under section 138(2) or (as the case may be) 147(2) in relation to the market investigation reference concerned; and
“the relevant authority” means—
where an intervention notice is in force in relation to the market investigation reference, the Secretary of State;
in any other case, the Commission.
(1) Subsection (2) applies where—
(a) a market investigation reference has been made;
(b) a report has been published under section 136 within the period permitted by section 137 or (as the case may be) a report prepared under section 142 and given to the Secretary of State under section 143(3) within the period permitted by section 144 has been published; and
(c) the market investigation reference concerned is not finally determined.
(2) The relevant authority may by order, for the purpose of preventing pre-emptive action—
(a) prohibit or restrict the doing of things which the relevant authority considers would constitute pre-emptive action;
(b) impose on any person concerned obligations as to the carrying on of any activities or the safeguarding of any assets;
(c) provide for the carrying on of any activities or the safeguarding of any assets either by the appointment of a person to conduct or supervise the conduct of any activities (on such terms and with such powers as may be specified or described in the order) or in any other manner;
(d) do anything which may be done by virtue of paragraph 19 of Schedule 8.
(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) An order under this section shall, if it has not previously ceased to be in force, cease to be in force when the market investigation reference is finally determined.
(5) The relevant authority shall, as soon as reasonably practicable, consider any representations received by the relevant authority in relation to varying or revoking an order under this section.
(1) The Commission may, in accordance with section 138, accept, from such persons as it considers appropriate, undertakings to take action specified or described in the undertakings.
(2) The Secretary of State may, in accordance with section 147, accept, from such persons as he considers appropriate, undertakings to take action specified or described in the undertakings.
(3) An undertaking under this section shall come into force when accepted.
(4) An undertaking under subsection (1) or (2) may be varied or superseded by another undertaking under that subsection.
(5) An undertaking under subsection (1) may be released by the Commission and an undertaking under subsection (2) may be released by the Secretary of State.
(6) The Commission or (as the case may be) the Secretary of State shall, as soon as reasonably practicable, consider any representations received by it or (as the case may be) him in relation to varying or releasing an undertaking under this section.
(1) Subsection (2) applies where the relevant authority considers that—
(a) an undertaking accepted by the relevant authority under section 159 has not been, is not being or will not be fulfilled; or
(b) in relation to an undertaking accepted by the relevant authority under that section, information which was false or misleading in a material respect was given to the relevant authority or the OFT by the person giving the undertaking before the relevant authority decided to accept the undertaking.
(2) The relevant authority may, for any of the purposes mentioned in section 138(2) or (as the case may be) 147(2), make an order under this section.
(3) Subsections (3) to (6) of section 138 or (as the case may be) 147 shall apply for the purposes of subsection (2) above as they apply for the purposes of that section.
(4) An order under this section may contain—
(a) anything permitted by Schedule 8; and
(b) such supplementary, consequential or incidental provision as the relevant authority considers appropriate.
(5) An order under this section—
(a) shall come into force at such time as is determined by or under the order;
(b) may contain provision which is different from the provision contained in the undertaking concerned; and
(c) may be varied or revoked by another order.
(6) 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.
(7) In this section “the relevant authority” means—
(a) in the case of an undertaking accepted under section 159 by the Commission, the Commission; and
(b) in the case of an undertaking accepted under that section by the Secretary of State, the Secretary of State.
(1) The Commission may, in accordance with section 138, make an order under this section.
(2) The Secretary of State may, in accordance with section 147, make an order under this section.
(3) An order under this section may contain—
(a) anything permitted by Schedule 8; and
(b) such supplementary, consequential or incidental provision as the person making it considers appropriate.
(4) 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.
(5) 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.
(1) The OFT shall keep under review the carrying out of any enforcement undertaking or any enforcement order.
Enterprise Act 2002