Part 5: Miscellaneous Chapter 2: Provision of investigative assistance to overseas regulators Schedule 28: Provision of investigative assistance to overseas regulators
This Schedule makes a number of amendments to other legislation as follows:
Amendments to Part 3 of the Enterprise Act 2002
There are time limits which apply for the CMA to impose civil penalties for failures to comply with or obstruction in connection with merger information notices issued by the CMA under section 109 of the Enterprise Act 2002. Section 110A of that Act is amended to include a provision to specify the time limit in a case where the section 109 power is being used for purposes of providing investigative assistance.
Section 111 is also amended to provide that where the CMA has imposed a daily default penalty in connection with an information notice which it has issued to assist O, such penalty will cease to accumulate on the day on which O no longer requires assistance.
Section 120 of the Enterprise Act 2002 concerns the right for a person aggrieved by a decision to appeal to the Competition Appeal Tribunal. An amendment is made to extend this right to decisions of the CMA or the Secretary of State in connection with the CMA’s provision of investigative assistance to an overseas regulator.
Amendments to Part 9 of the Enterprise Act 2002
Chapter 2 of Part 5 of this Act replaces section 243 in Part 9 of the Enterprise Act 2002 with new sections 243A to 243F. New section 243E relates to the directions which the Secretary of State can make preventing disclosures to an overseas authority. An amendment is made to clarify that the Secretary of State may not make a direction as set out in section 243E where the disclosure relates to investigative assistance provided by virtue of Chapter 2of Part 5 of the Act (i.e. assistance which has been authorised by the Secretary of State or is provided under a qualifying cooperation arrangement).
To ensure that information which comes to a public authority in connection with the exercise of its functions under Chapter 2 of Part 5 of the Act (investigative assistance) is categorised as "specified information" to which section 237 in Part 9 of the Enterprise Act 2002 applies, an amendment is made to add a reference to Chapter 2 of Part 5 of this Act into Schedule 14 to the Enterprise Act 2002.
An amendment is also made to add a reference to Chapter 2 of Part 5 of this Act to Schedule 15 to the Enterprise Act 2002 to ensure that information which comes to a public authority in connection with the exercise of competition and consumer enforcement functions can be disclosed (under the gateway in section 241 of the Enterprise Act 2002) to another public authority for the purposes of enabling that authority to carry out its functions under Chapter 2 of Part 5 of the Act.
Amendments to the Competition Act 1998
Section 25A of the Competition Act 1998 deals with the CMA’s power to publish notice of investigation. This section is amended to permit the CMA to publish a Section 25A notice in connection with the use of its investigatory powers under Part 1 of the Competition Act 1998 to assist O.
Section 25B (duty to preserve documents relevant to investigations) is also amended to ensure that the duty to preserve should apply to investigative assistance being carried out by the CMA.
Section 40A is amended to provide that the daily penalty for failure to comply with a requirement imposed by the CMA in connection with the provision of investigative assistance to O will cease to run where O no longer requires assistance.