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Competition Law

(From BERR, February 2008)

The Secretary of State for Trade and Industry sets the overall policy framework for competition, but is only involved in public interest decisions under the Enterprise Act.

UK Competition cases may be dealt with by the competition authorities (see below) under the following Acts and Regulations.

The Enterprise Act

The Enterprise Act received Royal Assent on 7 November 2002. The Act includes reforms to merger and monopoly regimes with decisions taken by independent competition authorities, new duties for OFT to promote competition, and criminal penalties for those involved in cartels.

Competition Act 1998

The Competition Act 1998 came into force on the 1 March 2000. It introduces two main prohibitions:

• Chapter I: a prohibition of anti-competitive agreements, based closely on Article 81 of the EC treaty; and

• Chapter II: a prohibition of abuse of a dominant position in a market, based closely on Article 82 of the EC Treaty

Competition Act 1998 EC Modernisation

Regulation 1/2003 (the ‘modernisation’ Regulation), which was adopted in November 2002 and came into force on 1 May 2004, replaced Regulation 17/62 and radically reforms the framework of European competition law.

EC Merger Regulation (ECMR)

Large Mergers with a European dimension may be covered by the European Community Merger Regulation (ECMR) - Council Regulation No. 139/2004.

Competition Authorities

The Secretary of State for Trade and Industry sets the overall policy framework for competition, but is only involved in public interest decisions under the Enterprise Act.

Under the Fair Trading Act 1973 (“1973 Act”) (which has been superseded by the Enterprise Act 2002) the Secretary of State had powers to refer qualifying merger and monopoly situations to the Competition Commission for investigation. The Secretary of State also had the power to accept statutory undertakings in lieu of such a reference and the powers to supersede, vary or release such undertakings.

The Enterprise Act 2002 provided for the continued enforcement of undertakings and orders made under the 1973 Act as well as responsibility for enforcement of these to be transferred by order to the competition authorities.

Four main competition bodies have a locus in the UK market:

• The Office of Fair Trading (OFT) exists to make markets work better. Its powers derive mainly from the Enterprise Act 2002, but some powers remain from earlier legislation (including the Competition Act 1998). The OFT addresses anti-competitive practices and consumer empowerment, by a mix of enforcement and communication, so benefiting businesses and consumers.

• The Competition Commission conducts in-depth inquiries into mergers, markets and the regulation of the major regulated industries, undertaken in response to a reference made by the Secretary of State for Trade and Industry, the Office of Fair Trading or sectoral regulator.

• The Competition Appeal Tribunal (CAT). The CAT is a specialist judicial body with cross-disciplinary expertise in law, economics, business and accountancy. Under United Kingdom law, the function of the CAT is to hear and decide appeals and other applications or claims involving competition or economic regulatory issues.

• The European Commission (Directorate General for Competition) has exclusive powers to act on certain large mergers with a European dimension. It also has powers to deal with restrictive agreements and anti-competitive practices when trade between members of the European Community, or in some cases the European Economic Area (EEA), is affected.

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