SCHEDULESavings and transitional provisions

Regulation 3

PART 1Saving and transitional provision in relation to the coming into force of provision in Chapter 1 of Part 2 (Competition) of the Act

1.

The amendments made by section 122 (production of information authorised by warrant) of the Act to sections 2830 and 28A of CA 199831 have no effect in relation to anything done further to a warrant that was issued under either of those sections before the commencement date.

2.

The amendments made by section 123 (additional powers of seizure from domestic premises) of the Act to the Criminal Justice and Police Act 200132 have no effect in relation to anything done further to a warrant issued under section 28 or 28A of CA 1998 before the commencement date.

3.

The amendments made by section 124 (standard of review on appeals against interim measures directions) of the Act to CA 1998 have no effect in relation to a decision made in respect of directions under section 3533 of CA 1998, where that decision was made before the commencement date.

4.

The amendments made by section 125 (declaratory relief) of, and Schedule 3 (power of Competition Appeal Tribunal to grant declaratory relief) to, the Act have no effect in relation to proceedings commenced in the Competition Appeal Tribunal34 before the commencement date, or transferred35 from a court to the Competition Appeal Tribunal before the commencement date.

PART 2Saving and transitional provision in relation to the coming into force of provision in Chapter 2 of Part 2 (Mergers) of the Act

5.

(1)

The amendments made by section 127 of, and Schedule 4 to, the Act (relevant merger situations and special merger situations) have no effect in relation to—

(a)

any enterprises ceasing to be distinct enterprises before the commencement date;

(b)

any arrangements which were in progress or in contemplation before the commencement date which, if carried into effect, might result in two or more enterprises ceasing to be distinct enterprises on or after the commencement date—

(i)

in relation to which the initial period began before the commencement date;

(ii)

in relation to which the Secretary of State gave the CMA36 a notice under section 42(2) of EA 200237 (intervention by the Secretary of State in certain public interest cases) before the commencement date;

(iii)

in relation to which the Secretary of State gave the CMA a notice under section 59(2) of EA 200238 (intervention by the Secretary of State in special public interest cases) before the commencement date; or

(iv)

in relation to which the Secretary of State gave the CMA a notice under section 70A(1) of EA 200239 (intervention in respect of a foreign state newspaper merger situation) before the commencement date.

(2)

The amendments made by section 128 of, and Schedule 5 to, the Act (fast track references under section 22 and 33 of EA 2002) have no effect in relation to any relevant case in relation to which the initial period began before the commencement date.

(3)

The amendments made by section 131 of the Act (mutual agreements to extend time-limits: duty to make reference cases), except that made by subsection (3)(a) of that section, have no effect in relation to any relevant case in relation to which the CMA made a reference under section 2240, 3341, 68B42 or 68C of EA 2002 (duties to make references in relation to completed mergers and anticipated mergers) before the commencement date.

(4)

The amendments made by section 132 of the Act (mutual agreements to extend time-limits: public interest cases) have no effect in relation to any relevant case—

(a)

in relation to which the Secretary of State made a reference under section 45 of EA 200243 (reference to the CMA in respect of a relevant merger situation) before the commencement date; or

(b)

in relation to which the Secretary of State made a reference under section 62 of EA 200244 (reference to the CMA in respect of a special merger situation) before the commencement date.

(5)

Section 26 of EA 2002 applies to this paragraph for the purpose of determining whether two or more enterprises cease to be distinct enterprises.

(6)

In this paragraph—

“enterprise” has the meaning given in section 129 of EA 2002;

“relevant case” means—

(a)

two or more enterprises ceasing to be distinct enterprises; or

(b)

any arrangements in progress or in contemplation which, if carried into effect, might result in two or more enterprises ceasing to be distinct enterprises;

“the initial period” has the same meaning as in Part 3 of EA 200245.

PART 3Saving and transitional provision in relation to the coming into force of provision in Chapter 3 of Part 2 (Markets) of the Act

6.

The amendments made by section 134 of the Act (market studies: removal of time-limit on pre-reference consultation) have no effect in relation to cases where a market study notice is published under section 130A(1)46 (duty to publish markets study notice) of EA 2002 before the commencement date.

7.

(1)

The insertion of section 131B(9)(b) into EA 2002 made by section 135(4) of the Act (power to make a reference after previously deciding not to do so) applies with the modification described in sub-paragraph (2) where the CMA has, before the commencement date—

(a)

published a market study notice; and

(b)

decided not to make a reference under section 13147 of EA 2002 in relation to the matter specified in the notice; but

(c)

not published the market study report in relation to the market study notice.

(2)

The modification in this paragraph is to read the words “preparation of the report” as though they were the words “the publication of the decision not to refer”.

8.

For the purposes of any variation of a market investigation reference under section 13548 (variation of market investigation references) of EA 2002 on or after the commencement date, the amendments made by section 136 of the Act (scope of market investigations) apply in relation to a reference made under section 131 or 13249 of EA 2002 before the commencement date as they apply in relation to any such reference made on or after that date.

9.

(1)

The coming into force of section 137, (acceptance of undertakings at any stage of a market study or investigation) of, and Schedule 8 (acceptance of undertakings at any stage of a market study or investigation) to, the Act is subject to sub-paragraph (2).

(2)

Paragraphs 8, 9, 10, 13 and 15 of Schedule 8 to the Act have no effect in relation to—

(a)

an undertaking accepted under section 154 of EA 2002 before the commencement date;

(b)

an undertaking accepted on or after the commencement date under section 15450 of EA 2002, as that section continues to have effect by virtue of paragraph (a), that varies or supersedes an undertaking accepted under section 154 of EA 2002 before the commencement date.

10.

The coming into force of section 138 (final undertakings and orders: power to conduct trials) of, and Schedule 9 (final undertakings and orders: power to conduct trials) to, the Act have no effect in relation to a market investigation reference made under section 131 of EA 2002, where a report has been published under section 136 of EA 2002 before the commencement date.

11.

(1)

The amendments made by section 139 (duty of CMA to monitor undertakings and orders) of the Act have no effect in relation to—

(a)

any enforcement order made before the commencement date;

(b)

any enforcement order made on or after the commencement date that—

(i)

varies an enforcement order made before the commencement date; or

(ii)

is made instead of an enforcement undertaking accepted before the commencement date;

(c)

any undertaking accepted before the commencement date;

(d)

any undertaking accepted on or after the commencement date that—

(i)

varies or supersedes an undertaking accepted before the commencement date; or

(ii)

is accepted instead of an enforcement order made before the commencement date.

(2)

In sub-paragraph (1)—

“enforcement order” means an order made under section 15851, 160 or 16152 of EA 2002; and
“enforcement undertaking” means an undertaking accepted under section 154, 15753 or 15954 of EA 2002.

(3)

In relation to any time on or after the commencement date, references in this paragraph to section 154 and 161 are references to those sections as they continue to have effect by virtue of this paragraph and paragraph 9.

PART 4Saving and transitional provision in relation to the coming into force of provision in Chapter 4 of Part 2 (Cartels) of the Act

12.

The amendments made by section 141 (production of information authorised by warrant) of the Act to section 19455 of EA 2002 have no effect in relation to a warrant issued before the commencement date.

PART 5Saving and transitional provision in relation to the coming into force of provision in Chapter 5 of Part 2 (Miscellaneous) of the Act

Saving and transitional provision: Part 1 (investigations under Part 1 of CA 1998 (competition)) of Schedule 10 to the Act

13.

(1)

The insertion of section 40ZE (enforcement of requirements: imposition of penalties) into CA 1998 by section 143(1)(a) (civil penalties etc in connection with competition matters) of, and paragraph 8 of Schedule 10 (civil penalties etc in connection with competition investigations) to, the Act and the related amendments in paragraphs 7 and 9 to 13 of that Schedule have no effect in relation to any act or omission of a kind described within section 40ZE(1) of CA 1998, where such an act or omission occurred—

(a)

before the commencement date; or

(b)

on or after the commencement date, but the act or omission occurred in relation to—

(i)

a requirement imposed under section 2656, 26A57, 2758, 28, 28A or 40ZD59 of CA 1998 before the commencement date;

(ii)

the exercise by an officer of the CMA of powers under section 27 of CA 1998 or under a warrant issued under section 28 or 28A of that Act (“investigatory powers”), before the commencement date;

(iii)

in the case of an act or omission of a kind described within section 40ZE(1)(d) or (e) of CA 1998 Act, a non-compulsory information request made before the commencement date; or

(iv)

a requirement imposed under section 27, 28 or 28A of that Act or the exercise of investigatory powers on or after the commencement date in a case where the notice of entry required under section 27(2) of that Act was given, or as the case may be, the warrant under section 28 of 28A was issued, before the commencement date.

(2)

For the purposes of sub-paragraph (1)(b)(iii) “non-compulsory information request” means a written request—

(a)

made by the CMA;

(b)

addressed to a specific person to provide information relating to the CMA’s functions under Part 1 of CA 1998; and

(c)

made where the request does not amount to a requirement to provide information imposed under Part 1 of CA 1998.

(3)

The amendments to section 40A60 (penalties: failure to comply with requirements) of CA 1998 made by paragraph 9 of Schedule 10 to the Act have no effect in relation to the continued operation of the Competition and Markets Authority (Penalties) Order 201461 in a case where those amendments have no effect by virtue of this paragraph.

Saving and transitional provision: Part 2 (investigations under Part 3 of EA 2002 (mergers)) of Schedule 10 to the Act

14.

(1)

The amendments to EA 2002 made by section 143(1)(b) of, and paragraphs 15 to 25 of Schedule 10 to, the Act have no effect in relation to a relevant act or omission where the relevant act or omission occurred—

(a)

before the commencement date; or

(b)

on or after the commencement date, but the relevant act or omission occurred in relation to—

(i)

a notice given under section 10962 of EA 2002 before the commencement date; or

(ii)

in the case of an act or omission of a kind described within section 110(1A)63 of EA 2002, a non-compulsory information request made before the commencement date.

(2)

For the purposes of sub-paragraph (1)—

“non-compulsory information request” means a written request—

(a)

made by the appropriate authority (within the meaning given by section 110(1B) of EA 2002);

(b)

addressed to a specific person to provide information relating to the appropriate authority’s functions under Part 3 of EA 2002;

(c)

made where that request does not amount to a requirement to provide information imposed under Part 3 of EA 2002;

“a relevant act or omission” is an act or omission of a kind described in either of the following sections of EA 2002—

(a)

section 110(1) or (1A) (as inserted by paragraph 15 of Schedule 10 to the Act);

(b)

section 116A(1) (as inserted by paragraph 23 of Schedule 10 to the Act).

(3)

The amendment to subsection (4), and repeal of subsection (6), of section 11164 of EA 2002 made by paragraphs 17(6) and (9) respectively of Schedule 10 to the Act have no effect in relation to the continued operation of the Competition and Markets Authority (Penalties) Order 2014 in a case where those amendments have no effect by virtue of this paragraph.

Saving and transitional provision: Part 3 (investigations under Part 4 of EA 2002 (market studies and market investigations)) of Schedule 10 to the Act

15.

(1)

The amendments to EA 2002 made by section 143(1)(b) of, and paragraphs 27 to 34 of Schedule 10 to, the Act have no effect in relation to a relevant act or omission where the relevant act or omission occurred—

(a)

before the commencement date; or

(b)

on or after the commencement date, but the relevant act or omission occurred in relation to—

(i)

a requirement imposed by notice under section 174 of EA 2002 before the commencement date; or

(ii)

in the case of an act or omission of a kind described within section 174(1A)65 of EA 2002, a non-compulsory information request made before the commencement date.

(2)

For the purposes of sub-paragraph (1)—

“non-compulsory information request” means a written request—

(a)

made by the relevant authority (within the meaning given by section 174A(1B)66 of EA 2002);

(b)

addressed to a specific person to provide information relating to the relevant authority’s functions under Part 4 of EA 2002; and

(c)

made where that request does not amount to a requirement to provide information imposed under Part 4 of EA 2002

“a relevant act or omission” is an act or omission of the kind described within the following sections of EA 2002—

(a)

section 174(1) or (1A) (as inserted by paragraph 27 of Schedule 10 to the Act);

(b)

section 116A(1) (as applied by section 180 of EA 2002 as amended by paragraph 32 of Schedule 10 to the Act).

(3)

The amendments to section 174D (penalties) of EA 2002 made by paragraph 29 of Schedule 10 to the Act have no effect in relation to the continued operation of the Competition and Markets Authority (Penalties) Order 2014 in a case where those amendments have no effect by virtue of this paragraph.

Transitional provision relating to the coming into force of section 143(2) (civil penalties for breaches of remedies) of the Act and Schedule 11 (civil penalties etc in connection with breaches of remedies)

16.

(1)

The amendments to CA 1998 made by section 143(2) of, and paragraphs 3 to 6 of Schedule 11 (civil penalties etc in connection with breaches of remedies) to, the Act have no effect in relation to—

(a)

any commitments accepted under section 31A67 of CA 1998 before the commencement date; or

(b)

any commitments accepted in accordance with section 31A(3) of CA 1998 on or after the commencement date as a variation of, or in substitution for, any commitments accepted under section 31A of CA 1998 before the commencement date.

(c)

any direction given under section 3268, 3369, or 35 of CA 1998 before the commencement date.

(2)

The amendments to EA 2002 made by section 143(2) of, and paragraphs 8 and 10 to 13 of Schedule 11 to, the Act have no effect in relation to—

(a)

any merger enforcement order made before the commencement date;

(b)

any merger enforcement order made on or after the commencement date that—

(i)

varies a merger enforcement order made before the commencement date;

(ii)

is made instead of a merger enforcement undertaking accepted before the commencement date;

(c)

any merger enforcement undertaking accepted before the commencement date; or

(d)

any merger enforcement undertaking accepted on or after the commencement date that—

(i)

varies or supersedes a merger enforcement undertaking accepted before the commencement date; or

(ii)

is accepted instead of a merger enforcement order made before the commencement date.

(3)

In sub-paragraph (2)—

“merger enforcement order” means an order made under section 70C70, 7271, 7572, 76, 8173, 83 or 8474 of, or under paragraph 275, 576, 6, 10 or 11 of Schedule 7 to, EA 2002;
“merger enforcement undertaking” means an undertaking accepted under section 7377, 8078 or 8279 of, or under paragraph 380 or 9 of Schedule 7 to, EA 2002.

(4)

The amendments to EA 2002 made by paragraphs 15, 17 and 18 of Schedule 11 to the Act have no effect in relation to—

(a)

any markets enforcement order made before the commencement date;

(b)

any markets enforcement order made on or after the commencement date that—

(i)

varies a markets enforcement order made before the commencement date; or

(ii)

is made instead of a markets enforcement undertaking accepted before the commencement date;

(c)

any markets enforcement undertaking accepted before the commencement date;

(d)

any markets enforcement undertaking accepted on or after the commencement date that—

(i)

varies or supersedes a markets enforcement undertaking accepted before the commencement date; or

(ii)

is accepted instead of a markets enforcement order made before the commencement date.

(5)

In sub-paragraph (4)—

“markets enforcement order” means an order made under section 158, 160 or 161 of EA 2002;

“markets enforcement undertaking” means an undertaking accepted under section 154, 157 or 159 of EA 2002.

(6)

In relation to any time on or after the commencement date, references in sub-paragraph (5) to section 154 and 161 are references to those sections as they continue to have effect by virtue of paragraphs 9 and 11 respectively.

(7)

The substitution of section 94A81 (interim undertakings and orders under this Part: penalties) of EA 2002 made by paragraph 11 of Schedule 11 to the Act has no effect in relation to the continued operation of the Enterprise Act 2002 (Mergers) (Interim Measures: Financial Penalties) (Determination of Control and Turnover) Order 201482 in a case where that substitution has no effect by virtue of sub-paragraph (2).

Transitional provision relating to the coming into force of section 144 (service and extra-territoriality of notices under CA 1998 and EA 2002 of the Act and Schedule 13

17.

(1)

The substitution of section 126 (service of documents by the CMA, OFCOM or the Secretary of State) of EA 2002 made by section 144 (service and extra-territoriality of notices under CA 1998 and EA 2002) of, and paragraph 1 of Schedule 13 (service and extra-territoriality of notices under CA 1998 and EA 2002) to, the Act has no effect in relation to any document served before the commencement date.

(2)

The insertion of new section 44A (giving of notices under Chapter 3) into CA 1998 made by section 144 of, and paragraph 2 of Schedule 13 to, the Act has no effect in relation to any notice given before the commencement date.

Saving provision relating to the coming into force of section 146 (meaning of “working day” in Parts 3 and 4 of EA 2002)

18.

(1)

The amendments to EA 2002 made by section 146 of the Act (meaning of “working day” in Parts 3 and 4 of EA 2002) have no effect when calculating—

(a)

the “initial period” for the purposes of section 34ZA83 (time-limits for decisions about references) of EA 2002; or

(b)

any period of time referred to in section 73A84 (time-limits for consideration of undertakings) of EA 2002, where that period of time began before the commencement date,

in relation to a possible reference that falls within sub-paragraph (3).

(2)

Sub-paragraph (1)(b) does not apply in relation to any extension of a period of time under section 73A(4) where that extension is granted on or after the commencement date.

(3)

A possible reference falls within this paragraph if it is a possible reference under section 22, 33, 68B or 68C of EA 2002 in relation to which the initial period began before the commencement date.

(4)

In this paragraph, “the initial period” has the same meaning as in Part 3 of EA 2002

PART 6

Transitional provision relating to the coming into force of section 326 (disclosure of information oversees)

19.

In relation to any time before the coming into force of section 151 (enforcers) of the Act, paragraph (a) of section 243A(2) of EA 2002 (as inserted by section 326 (disclosure of information overseas) of the Act) is to be read as if it referred to information which is held by a person who is designated by virtue of section 213(4) of EA 2002 as a designated enforcer for the purposes of Part 8 of that Act.

Enactments applied by other enactments

20.

(1)

This Schedule applies in relation to enactments as applied by other enactments as it applies in relation to the enactments themselves.

(2)

In their application to provisions applied by virtue of Schedule 4ZA to the Water Industry Act 199185—

(a)

paragraph 5(3); and

(b)

paragraph 18(3),

have effect as if the references to sections 22, 33, 68B or 68C of EA 2002 were references to section 32 of the Water Industry Act 1991.

(3)

In its application to functions exercisable under EA 2002 concurrently with a sectoral regulator, paragraphs 7(1) and 15(2)86 have effect as if any reference to the CMA includes a reference to the sectoral regulator concerned.

(4)

In their application to functions exercisable under CA 1998 concurrently with a sectoral regulator, paragraphs 13(1)(b)(ii) and (2) have effect as if any reference to the CMA includes a reference to the sectoral regulator concerned.

(5)

In this paragraph “sectoral regulator” means—

(a)

the Office of Communications87;

(b)

the Gas and Electricity Markets Authority 88;

(c)

the Water Services Regulation Authority89;

(d)

the Office of Rail and Road90;

(e)

the Northern Ireland Authority for Utility Regulation91;

(f)

the Civil Aviation Authority92;

(g)

the Payment Systems Regulator93; or

(h)

the Financial Conduct Authority94.

(6)

This paragraph is subject to any provision made otherwise than by this Schedule and dealing specifically with the enactments as applied.