SCHEDULE
Article 2
Office of Fair Trading’s Rules
The OFT, in exercise of the powers conferred upon it by sections 51(1) and 75A(1) of and Schedule 9 to the Competition Act 19983, hereby makes the following Rules:
1. Interpretation
(1) In these Rules—
“the Act” means the Competition Act 1998;
“confidential information” means—
(a) commercial information whose disclosure the OFT or a regulator 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 OFT or a regulator thinks might significantly harm the individual’s interests, or
(c) information whose disclosure the OFT or a regulator thinks is contrary to the public interest;
“infringement decision” means a decision that one or more of the Chapter I prohibition, the Chapter II prohibition, the prohibition in Article 81(1) and the prohibition in Article 82 has been infringed;
“internal document” means—
(a) a document produced by, or exchanged between, any of the OFT, a regulator or another public authority, or
(b) a document produced by any person from time to time retained under a contract for services by any of the OFT, a regulator or another public authority in connection with such a contract;
“public authority” includes—
(a) in the United Kingdom, a court or tribunal and any person exercising functions of a public nature, and
(b) in any country or territory outside the United Kingdom, a court or tribunal and any person or body which appears to the OFT or a regulator to be exercising functions of a public nature;
“writing” includes text that is—
(a) transmitted by electronic means,
(b) received in legible form, and
(c) capable of being used for subsequent reference.
(2) In these Rules, any reference to:
(a)
(a) a numbered rule is to the rule in these Rules which is so numbered;
(b)
(b) a numbered paragraph or sub-paragraph is to the paragraph or sub-paragraph which is so numbered in the rule where the reference occurs.
(3) Except where these Rules otherwise provide, expressions used in the Act which are also used in these Rules have the same meaning in these Rules as they have in section 59 of the Act.
(4) Except in this rule and rule 20, any reference in these Rules to the OFT means the OFT or a regulator.
2. Application of the Rules
(1) Subject to paragraphs (2) and (3), these Rules apply when the OFT takes investigation or enforcement action under the Act in relation to any one or more of the Chapter I prohibition, the Chapter II prohibition, the prohibition in Article 81(1) and the prohibition in Article 82.
(2) Rule 11 on the cancellation etc. of an individual exemption, rule 12 on the cancellation etc. of a parallel exemption, rule 14 on the withdrawal of an exclusion, rule 15 on the termination of the transitional period and rule 16 on the application for extension of the transitional period apply only when the OFT takes investigation or enforcement action in relation to the Chapter I prohibition or the Chapter II prohibition.
(3) Rule 13 on the withdrawal of the benefit of a regulation of the Commission pursuant to Article 29(2) of the EC Competition Regulation applies only when the OFT takes investigation or enforcement action in relation to the prohibition in Article 81(1).
3. Legal advice during investigations and inspections
(1) An officer shall grant a request of the occupier of premises entered by the officer to allow a reasonable time for the occupier’s legal adviser to arrive at the premises before the investigation continues, if the officer considers it reasonable in the circumstances to do so and if the officer is satisfied that such conditions as he considers it appropriate to impose in granting the occupier’s request are, or will be, complied with.
(2) For the purposes of paragraph (1), “a reasonable time” means such period of time as the officer considers is reasonable in the circumstances.
(3) A person required by the OFT under section 26(6)(a)(ii) or (b) or section 65E(6)(a)(ii) or (b) of the Act to provide an explanation of a document in person may be accompanied by a legal adviser.
(4) In this rule, “officer” means an investigating officer within the meaning of section 27(1) or 65F(1) of the Act or a named officer of the OFT authorised by a warrant issued under section 28, 28A, 65G or 65H of the Act.
4. Statement of objections
(1) If the OFT proposes to make an infringement decision—
(a)
(a) the OFT shall give notice of this stating which one or more of the Chapter I prohibition, the Chapter II prohibition, the prohibition in Article 81(1) and the prohibition in Article 82 the OFT considers has been infringed; and
(b)
(b) the provisions of rule 5 shall apply.
(2) Subject to rules 17 and 18, the notice referred to in paragraph (1)(a) must be given to each person who the OFT considers is a party to the agreement, or is engaged in conduct, which the OFT considers infringes one or more of the prohibitions mentioned in paragraph (1)(a).
5. Notices, access to file and representations
(1) In this rule—
(a)
(a) “notice” means a notice that the OFT is required to give under rule 4, 12(3) or 13(1); and
(b)
(b) “relevant person” means a person to whom notice is required to be given under the rules mentioned in sub-paragraph (a).
(2) A notice shall state:
(a)
(a) the facts on which the OFT relies, the objections raised by the OFT, the action the OFT proposes and its reasons for the proposed action;
(b)
(b) the period within which a relevant person may make written representations to the OFT identifying the information contained in the notice which that relevant person considers the OFT should treat as confidential information and explaining why he considers the OFT should treat such information as confidential information; and
(c)
(c) the period within which a relevant person may make written representations to the OFT on the matters referred to in the notice.
(3) The OFT shall give a relevant person a reasonable opportunity to inspect the documents in the OFT’s file that relate to the matters referred to in a notice given to that relevant person, except that the OFT may withhold any document—
(a)
(a) to the extent that it contains confidential information; or
(b)
(b) which is an internal document.
(4) Where, in written representations on the matters referred to in a notice given to a relevant person, that relevant person states that he wishes to make oral representations to the OFT on such matters, the OFT shall give that relevant person a reasonable opportunity to make such oral representations.
(5) Where, upon the expiry of the period mentioned in paragraph (2)(c), no written representations on the matters referred to in a notice given to a relevant person have been made by that relevant person, the OFT may proceed with the case in the absence of such representations.
(6) Where the OFT has given a relevant person a reasonable opportunity to make oral representations under paragraph (4) but no oral representations have been made, the OFT may proceed with the case in the absence of such representations.
(7) Paragraph (2)(b) is not to be construed as restricting the application of rule 6(1) and (2).
6. Confidential information
(1) Where a person who has supplied information to the OFT has made representations to the OFT identifying such information as being information that the OFT should treat as confidential information and the OFT proposes to disclose such information under these Rules, the OFT shall take all reasonable steps to—
(a)
(a) inform that person of the OFT’s proposed action; and
(b)
(b) give that person a reasonable opportunity to make representations to the OFT on the OFT’s proposed action.
(2) The OFT may at any time request a person who has supplied information to the OFT to make written representations to the OFT in respect of the...
