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The Criminalization of European Cartel EnforcementTheoretical, Legal, and Practical Challenges$

Peter Whelan

Print publication date: 2014

Print ISBN-13: 9780199670062

Published to Oxford Scholarship Online: November 2014

DOI: 10.1093/acprof:oso/9780199670062.001.0001

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(p.318) Annex II Text of the (Original) UK Cartel Offence and Section 47 of the Enterprise and Regulatory Reform Act 2013

(p.318) Annex II Text of the (Original) UK Cartel Offence and Section 47 of the Enterprise and Regulatory Reform Act 2013

Source:
The Criminalization of European Cartel Enforcement
Publisher:
Oxford University Press

Text of the (Original) UK Cartel Offence in the Enterprise Act 2002

188 Cartel offence

  1. (1) An individual is guilty of an offence if he dishonestly agrees with one or more other persons to make or implement, or to cause to be made or implemented, arrangements of the following kind relating to at least two undertakings (A and B).

  2. (2) The arrangements must be ones which, if operating as the parties to the agreement intend, would—

    1. (a) directly or indirectly fix a price for the supply by A in the United Kingdom (otherwise than to B) of a product or service,

    2. (b) limit or prevent supply by A in the United Kingdom of a product or service,

    3. (c) limit or prevent production by A in the United Kingdom of a product,

    4. (d) divide between A and B the supply in the United Kingdom of a product or service to a customer or customers,

    5. (e) divide between A and B customers for the supply in the United Kingdom of a product or service, or

    6. (f) be bid-rigging arrangements.

  3. (3) Unless subsection (2)(d), (e) or (f) applies, the arrangements must also be ones which, if operating as the parties to the agreement intend, would—

    1. (a) directly or indirectly fix a price for the supply by B in the United Kingdom (otherwise than to A) of a product or service,

    2. (b) limit or prevent supply by B in the United Kingdom of a product or service, or

    3. (c) limit or prevent production by B in the United Kingdom of a product.

  4. (4) In subsections (2)(a) to (d) and (3), references to supply or production are to supply or production in the appropriate circumstances (for which see section 189).

  5. (5) ‘Bid-rigging arrangements’ are arrangements under which, in response to a request for bids for the supply of a product or service in the United Kingdom, or for the production of a product in the United Kingdom—

    1. (a) A but not B may make a bid, or

    2. (b) A and B may each make a bid but, in one case or both, only a bid arrived at in accordance with the arrangements.

  6. (6) But arrangements are not bid-rigging arrangements if, under them, the person requesting bids would be informed of them at or before the time when a bid is made.

  7. (7) ‘Undertaking’ has the same meaning as in Part 1 of the 1998 Act.

189 Cartel offence: supplementary

  1. (1) For section 188(2)(a), the appropriate circumstances are that A’s supply of the product or service would be at a level in the supply chain at which the product or service would at the same time be supplied by B in the United Kingdom.

  2. (2) For section 188(2)(b), the appropriate circumstances are that A’s supply of the product or service would be at a level in the supply chain—

    1. (a) at which the product or service would at the same time be supplied by B in the United Kingdom, or

    2. (b) at which supply by B in the United Kingdom of the product or service would be limited or prevented by the arrangements.

  3. (p.319) (3) For section 188(2)(c), the appropriate circumstances are that A’s production of the product would be at a level in the production chain—

    1. (a) at which the product would at the same time be produced by B in the United Kingdom, or

    2. (b) at which production by B in the United Kingdom of the product would be limited or prevented by the arrangements.

  4. (4) For section 188(2)(d), the appropriate circumstances are that A’s supply of the product or service would be at the same level in the supply chain as B’s.

  5. (5) For section 188(3)(a), the appropriate circumstances are that B’s supply of the product or service would be at a level in the supply chain at which the product or service would at the same time be supplied by A in the United Kingdom.

  6. (6) For section 188(3)(b), the appropriate circumstances are that B’s supply of the product or service would be at a level in the supply chain—

    1. (a) at which the product or service would at the same time be supplied by A in the United Kingdom, or

    2. (b) at which supply by A in the United Kingdom of the product or service would be limited or prevented by the arrangements.

  7. (7) For section 188(3)(c), the appropriate circumstances are that B’s production of the product would be at a level in the production chain—

    1. (a) at which the product would at the same time be produced by A in the United Kingdom, or

    2. (b) at which production by A in the United Kingdom of the product would be limited or prevented by the arrangements.

Section 47 of the Enterprise and Regulatory Reform Act 2013

47 Cartel offence

  1. (1) Section 188 of the 2002 Act (cartel offence) is amended as follows.

  2. (2) In subsection (1), omit ‘dishonestly’.

  3. (3) Omit subsection (6).

  4. (4) After subsection (7) insert—

    ‘(8) This section is subject to section 188A.’

  5. (5) After that section insert—

    ‘188A Circumstances in which cartel offence not committed

    1. (1) An individual does not commit an offence under section 188(1) if, under the arrangements—

      1. (a) in a case where the arrangements would (operating as the parties intend) affect the supply in the United Kingdom of a product or service, customers would be given relevant information about the arrangements before they enter into agreements for the supply to them of the product or service so affected,

      2. (b) in the case of bid-rigging arrangements, the person requesting bids would be given relevant information about them at or before the time when a bid is made, or

      3. (c) in any case, relevant information about the arrangements would be published, before the arrangements are implemented, in the manner specified at the time of the making of the agreement in an order made by the Secretary of State.

    2. (2) In subsection (1), “relevant information” means—

      1. (a) the names of the undertakings to which the arrangements relate,

      2. (b) a description of the nature of the arrangements which is sufficient to show why they are or might be arrangements of the kind to which section 188(1) applies,

      3. (p.320) (c) the products or services to which they relate, and

      4. (d) such other information as may be specified in an order made by the Secretary of State.

    3. (3) An individual does not commit an offence under section 188(1) if the agreement is made in order to comply with a legal requirement.

    4. (4) In subsection (3), “legal requirement” has the same meaning as in paragraph 5 of Schedule 3 to the Competition Act 1998.

    5. (5) A power to make an order under this section—

      1. (a) is exercisable by statutory instrument,

      2. (b) may be exercised so as to make different provision for different cases or different purposes, and

      3. (c) includes power to make such incidental, supplementary, consequential, transitory, transitional or saving provision as the Secretary of State considers appropriate.

    6. (6) A statutory instrument containing an order under this section is subject to annulment in pursuance of a resolution of either House of Parliament.’

  6. (6) After section 188A (as inserted by subsection (5) above) insert—

    ‘188B Defences to commission of cartel offence

    1. (1) In a case where the arrangements would (operating as the parties intend) affect the supply in the United Kingdom of a product or service, it is a defence for an individual charged with an offence under section 188(1) to show that, at the time of the making of the agreement, he or she did not intend that the nature of the arrangements would be concealed from customers at all times before they enter into agreements for the supply to them of the product or service.

    2. (2) It is a defence for an individual charged with an offence under section 188(1) to show that, at the time of the making of the agreement, he or she did not intend that the nature of the arrangements would be concealed from the CMA.

    3. (3) It is a defence for an individual charged with an offence under section 188(1) to show that, before the making of the agreement, he or she took reasonable steps to ensure that the nature of the arrangements would be disclosed to professional legal advisers for the purposes of obtaining advice about them before their making or (as the case may be) their implementation.’

  7. (7) After section 190 of the 2002 Act insert—

    ‘190A Cartel offence: prosecution guidance

    1. (1) The CMA must prepare and publish guidance on the principles to be applied in determining, in any case, whether proceedings for an offence under section 188(1) should be instituted.

    2. (2) The CMA may at any time issue revised or new guidance.

    3. (3) Guidance published by the CMA under this section is to be published in such manner as it considers appropriate.

    4. (4) In preparing guidance under this section the CMA must consult—

      1. (a) the Director of the Serious Fraud Office;

      2. (b) the Lord Advocate; and

      3. (c) such other persons as it considers appropriate.’

  8. (8) The amendments made by subsections (1) to (6) apply only in relation to agreements falling within section 188(1) of the 2002 Act which—

    1. (a) are made after the commencement of this section, and

    2. (b) relate to arrangements made or to be made after that commencement.