EC Competition Law (Articles 88 and 89) Enforcement Regulations 1996

JurisdictionUK Non-devolved
CitationSI 1996/2199

1996 No. 2199

EUROPEAN COMMUNITIES

The EC Competition Law (Articles 88 and 89) Enforcement Regulations 1996

Made 23th August 1996

Laid before Parliament 27th August 1996

Coming into force 28th August 1996

The Secretary of State, being the Minister designated1for the purposes of section 2(2) of the European Communities Act 19722in relation to measures relating to the procedure for, nature of and enforcement of decisions concerning competition between undertakings, in exercise of the powers conferred by that section hereby makes the following Regulations:

Title, commencement and extent
S-1 Title, commencement and extent

Title, commencement and extent

1.—(1) These Regulations may be cited as the EC Competition Law (Articles 88 and 89) Enforcement Regulations 1996 and shall come into force on the day after the day on which they are laid before Parliament.

(2) These Regulations extend to Northern Ireland.

Interpretation
S-2 Interpretation

Interpretation

2.—(1) In these Regulations —

the 1973 Act” means the Fair Trading Act 1973;3

“Commission” means the Commission of the European Communities;

“the Director” means the Director General of Fair Trading;

“the MMC” means the Monopolies and Mergers Commission;

“practice” means any form of conduct or any other matter which may constitute an abuse of a dominant position;

“qualifying undertaking” means an undertaking which is —

(a ) in the case of an individual, a citizen of the United Kingdom and Colonies, or

(b ) a body corporate incorporated under the law of the United Kingdom, or of a part of the United Kingdom, or

(c ) a person carrying on business in the United Kingdom, either alone or in partnership with one or more other persons.

(2) References in these Regulations to Articles are (except where the contrary intention appears) references to Articles of the treaty establishing the European Community.

(3) Except in the case of the word “undertaking” in regulations 14, 20, 22 and 24, expressions used in these Regulations and in Article 85, 86, 88 or 89 shall have the meaning they bear in the treaty establishing the European Community.

(4) Any provision of these Regulations which is expressed to apply to, or in relation to, an agreement is to be read as applying equally to, or in relation to, a decision by an association of undertakings or a concerted practice (but with any necessary modifications).

Preliminary investigation by the Director
S-3 Preliminary investigation by the Director

Preliminary investigation by the Director

3.—(1) If it appears to the Secretary of State that the United Kingdom might have a duty under Article 88 to rule on the question —

(a)

(a) whether or not there is or has been in existence an agreement prohibited by Article 85 to which a qualifying undertaking is a party, or

(b)

(b) whether or not the carrying on of a practice by a qualifying undertaking constitutes an infringement of Article 86,

he may ask the Director to carry out an investigation (a “preliminary investigation”) and to advise the Secretary of State of the outcome.

(2) In carrying out a preliminary investigation, the Director shall take into account all representations made to him by persons appearing to him to have a substantial interest in the subject matter of the investigation.

Action by the Secretary of State on an agreement
S-4 Action by the Secretary of State on an agreement

Action by the Secretary of State on an agreement

4.—(1) This paragraph applies where, following a preliminary investigation by the Director of an agreement, it appears to the Secretary of State —

(a)

(a) that there is or has been in existence an agreement, to which at least one of the parties is or was a qualifying undertaking, and

(b)

(b) that the United Kingdom has a duty under Article 88 to rule on the question whether or not the agreement is prohibited by Article 85.

(2) Where paragraph (1) applies, the Secretary of State may, if it appears to him that the agreement does not or did not fall within Article 85(1), decide to certify that, on the basis of the facts in his possession, there are no grounds for action on his part in respect of the agreement.

(3) Where paragraph (1) applies, the Secretary of State may, if it appears to him that the agreement falls within Article 85(1) or did so fall, but that the conditions for application of Article 85(3) are met or were met in respect of the agreement, declare the provisions of Article 85(1) inapplicable to the agreement.

(4) Where paragraph (1) applies and the Secretary of State has not made a decision under paragraph (2) or a declaration under paragraph (3), he may refer the agreement to the MMC for investigation and report.

(5) Where, following a preliminary investigation by the Director, it appears to the Secretary of State that there may be, or may have been, in existence an agreement to which at least one of the parties is or was a qualifying undertaking, and that, if so, the United Kingdom would have a duty to rule on the agreement under Article 88, the Secretary of State may refer the suspected agreement to the MMC for investigation and report.

Action by the Secretary of State on a practice
S-5 Action by the Secretary of State on a practice

Action by the Secretary of State on a practice

5.—(1) This paragraph applies where, following a preliminary investigation by the Director of a practice, it appears to the Secretary of State that —

(a)

(a) a practice is being, or has been, carried on by a qualifying undertaking, and

(b)

(b) the United Kingdom has a duty under Article 88 to rule on the question whether or not the practice infringes Article 86.

(2) Where paragraph (1) applies, the Secretary of State may, if it appears to him that the practice does not infringe Article 86, decide to certify that, on the basis of the facts in his possession, there are no grounds for action on his part in respect of the practice.

(3) Where paragraph (1) applies and it appears to the Secretary of State that the practice may infringe Article 86, the Secretary of State may refer the practice to the MMC for investigation and report.

(4) Where, following a preliminary investigation by the Director, it appears to the Secretary of State that a practice may be being or may have been carried on by a qualifying undertaking, and that, if so, the United Kingdom would have a duty to rule on the practice under Article 88, the Secretary of State may refer the suspected practice to the MMC for investigation and report.

Publication of decisions by Secretary of State
S-6 Publication of decisions by Secretary of State

Publication of decisions by Secretary of State

6.—(1) Subject to paragraphs (3) and (4) below, the Secretary of State shall publish any decision to certify taken by him under regulation 4(2) or 5(2) and any declaration made by him under regulation 4(3) together with such an account of his reasons for making the decision or declaration as in his opinion is expedient for facilitating an understanding of his decision or of his declaration.

(2) Any publication of a decision or declaration under paragraph (1) shall be in such manner as appears to the Secretary of State to be appropriate.

(3) If it appears to the Secretary of State that it would be against the public interest to publish a particular matter which he would otherwise include in an account of his reasons required to be published under paragraph (1), the Secretary of State shall exclude that matter from the account before publishing it.

(4) Without prejudice to paragraph (3), if the Secretary of State considers that it would not be in the public interest to disclose any matter which he would otherwise include in an account of his reasons required to be published under paragraph (1),

(a)

(a) relating to the private affairs of an individual whose interests would, in the opinion of the Secretary of State, be seriously and prejudicially affected by the publication of that matter, or

(b)

(b) relating specifically to the affairs of a particular person whose interests would, in the opinion of the Secretary of State, be seriously and prejudicially affected by the publication of that matter,

the Secretary of State shall exclude that matter from the account before publishing it.

Variation of reference
S-7 Variation of reference

Variation of reference

7. The Secretary of State may at any time vary a reference made by him under these Regulations.

Publication of references
S-8 Publication of references

Publication of references

8. On making a reference under these Regulations or a variation of such a reference the Secretary of State shall arrange for the reference or variation to be published in such manner as he thinks most suitable for the purpose of bringing it to the attention of persons who, in his opinion, would be affected by it.

Time limit for report on a reference
S-9 Time limit for report on a reference

Time limit for report on a reference

9.—(1) Every reference under regulation 4, 5 or 20 shall specify a period (not being longer than six months beginning with the date of the reference) within which a report on the reference is to be made.

(2) The Secretary of State may give directions to the MMC allowing such further period for the purpose of reporting on a reference under these Regulations as may be specified in the directions, or, if the period has already been extended once or more than once by directions under this paragraph, allowing to the MMC such further extended period for that purpose as may be so specified.

Functions of the MMC on a reference of an agreement
S-10 Functions of the MMC on a reference of an agreement

Functions of the MMC on a reference of an agreement

10.—(1) On a reference under regulation 4 the MMC shall investigate and report on the questions —

(a)

(a) whether such an agreement which is the subject of the reference exists or has existed;

(b)

(b) whether any qualifying undertaking is or was a party to it;

(c)

(c) whether the agreement falls...

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