The Competition Act 1998 (Concurrency) Regulations 2014
| Year | 2014 |
2014 No. 536
Competition
The Competition Act 1998 (Concurrency) Regulations 2014
Made 6th March 2014
Laid before Parliament 10th March 2014
Coming into force 1st April 2014
The Secretary of State, in exercise of the powers conferred by sections 54(4), (5) to (6B) and 71 of the Competition Act 19981, makes the following Regulations:
Citation and commencement
1. These Regulations may be cited as the Competition Act 1998 (Concurrency) Regulations 2014 and come into force on 1st April 2014.
Interpretation
2.—(1) In these Regulations—
“the Act” means the Competition Act 1998;
“the CMA’s Rules” means the Competition and Markets Authority’s Rules set out in the Schedule to the Competition Act 1998 (Competition and Market Authority’s Rules) Order 20142;
“notify” means to notify in writing (including electronically) and “notice” shall be construed accordingly;
“Part 1 functions” means any functions under Part 1 of the Act which are, or (but for provision under these Regulations) would be, exercisable concurrently by two or more competent persons3;
“prescribed functions” means—
(i) any of the functions of the CMA under section 25 of the Act;
(ii) the function of making a decision, as defined in section 46(3) of the Act;
(iii) any of the functions of the CMA under paragraph 4 of Schedule 1 to the Act or under an order made under section 50 of the Act; and
“relevant competent persons” has the meaning given in regulation 4(2).
(2) References in these Regulations to “health care”, “the NHS” and the provision of health care services for the purposes of the NHS each have the meaning given in section 64 of the Health and Social Care Act 20124.
Information regarding potential cases
3. For the purpose of determining which competent persons have jurisdiction to exercise Part 1 functions in respect of a case or for the purpose of facilitating the performance by another competent person of its Part 1 functions, a competent person may send to any other competent person details of any information in its possession that an infringement of—
(a) the Chapter I prohibition5,
(b) the Chapter II prohibition,
(c) the prohibition in Article 101(1), or
(d) the prohibition in Article 102,
may have taken place.
Determination of the exercise of Part 1 functions
4.—(1) If a competent person proposes to exercise any of the prescribed functions in respect of a case and it considers that another competent person has or may have concurrent jurisdiction to exercise Part 1 functions in respect of that case, it must inform that other competent person in writing of its intention to exercise prescribed functions in respect of that case.
(2) Where a competent person has informed another competent person of its intention to exercise prescribed functions in accordance with paragraph (1) in respect of a case, all such competent persons (“the relevant competent persons”) must agree who is to exercise Part 1 functions in respect of that case.
(3) When agreement has been reached in accordance with paragraph (2), the CMA must as soon as practicable inform in writing the other relevant competent persons which competent person is to exercise Part 1 functions in respect of the case.
Dispute
5.—(1) If the relevant competent persons are not able to reach agreement in accordance with regulation 4(2) within a reasonable time, the CMA must notify the other relevant competent persons that it intends to determine which relevant competent person is to exercise Part 1 functions in respect of the case.
(2) Any relevant competent person may make representations in writing to the CMA no later than 5 working days after the date upon which the CMA notifies its intention to make a determination in accordance with paragraph (1).
(3) The CMA must within 10 working days of notifying its intention in accordance with paragraph (1)—
(a)
(a) determine which competent person is to exercise Part 1 functions in respect of the case; and
(b)
(b) inform in writing all other relevant competent persons—
(i) which competent person is to exercise jurisdiction in respect of the case,
(ii) the date of the determination, and
(iii) the reasons for the determination.
(4) In making a determination in accordance with paragraph (3)(a) the CMA—
(a)
(a) must take into consideration any representations made in accordance with paragraph (2); and
(b)
(b) (subject to paragraph (5)) may decide that it is to exercise Part 1 functions in respect of the case rather than another relevant competent person, where the CMA is satisfied that its doing so would further the promotion of competition, within any market or markets in the United Kingdom, for the benefit of consumers.
(5) Where Monitor is one of the relevant competent persons, the CMA may not make a determination in accordance with paragraph (1) and (3)(a) that a competent person other than Monitor is to exercise Part 1 functions in relation to the case unless the CMA is satisfied that the case is not principally concerned with matters relating to the provision of health care services for the purposes of the NHS in England.
Avoidance of double jeopardy
6.—(1) Where two or more competent persons may have concurrent jurisdiction to exercise Part 1 functions in respect of a case, no competent person shall exercise any prescribed functions in respect of that case before agreement has been reached in accordance with regulation 4(2) or a determination has been made in accordance with regulation 5(3)(a) as to which competent person is to exercise Part 1 functions in respect of that case.
(2) Subject to regulations 7 and 8, once agreement has been reached in accordance with regulation 4(2) or a determination has been made in accordance with regulation 5(3)(a) as to which competent person is to exercise Part 1 functions in respect of a case, no other competent person shall exercise any Part 1 functions in respect of that case.
Transfer
7.—(1) A competent person who has exercised any Part 1 functions in respect of a case (“the transferor”) may agree with another competent person who but for regulation 6 would have, concurrent jurisdiction to exercise Part 1 functions in respect of that case (“the transferee”) to transfer the case to the transferee.
(2) If the transferor and the transferee propose to agree a transfer in accordance with paragraph (1), the transferor must first—
(a)
(a) notify the undertaking which is the subject of the exercise of Part 1 functions in that case (the undertaking concerned) and any other person likely to be materially affected by the transfer, of the proposed transfer, and
(b)
(b) give such recipients of the notice the opportunity to make written representations upon the proposal within no less than 10 working days of the date of that notice.
(3) The transferor and transferee must take into account any written representations made in accordance with paragraph (2)(b) before agreeing the transfer.
(4) Once the transferor and transferee have reached a decision about the proposed transfer, the transferor must—
(a)
(a) inform the recipients of the notice under paragraph (2) in writing of their decision and the reasons for it, and
(b)
(b) if the transfer has been agreed, that the transferee is to exercise jurisdiction in respect of the case from the date of the transfer.
(5) The transferor is not under any obligation to notify any person in accordance with paragraph (2) or to inform any person...
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