The Competition (Amendment etc.) (EU Exit) (No. 2) Regulations 2019 (expired—not approved)

[X1 Amendment of Schedule 3: amendment of retained direct EU legislation U.K.

34.— (1) Schedule 3 to the 2019 Regulations is amended as follows.

(2) In paragraph 2—

(a) the existing provision becomes sub-paragraph (1) of that paragraph;

(b) in sub-paragraph (1), for the words from “with the exception of” to the end substitute—

“with the exception of—

(a) EU regulations made by the European Commission under the EU regulations specified in paragraph 1(b), (c), and (h);

(b) the following EU decisions made by the European Commission under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings—

(i) Commission decision of 30.3.2012 pursuant to Article 6(1)(b) in conjunction with Article 6(2) of Council Regulation No 139/2004 in case M.6447 -IAG/BMI;

(ii) Commission decision of 21.09.2012 declaring a concentration to be compatible with the internal market and the EEA agreement in case M.6458 - Universal Music Group/EMI Music;

(iii) Commission decision of 6.11.2012 pursuant to Article 6(1)(b) in conjunction with Article 6(2) of Council Regulation No 139/2004 in case M.6564 - ARM/ Giesecke & Devrient/Gemalto/JV;

(iv) Commission decision of 22.11.2012 pursuant to Article 6(1)(b) in conjunction with Article 6(2) of Council Regulation No 139/2004 in case M.6541 - Glencore/Xstrata;

(v) Commission decision of 05.8.2013 pursuant to Article 6(1)(b) in conjunction with Article 6(2) of Council Regulation No 139/2004 in case M.6607 - US Airways/American Airlines;

(vi) Commission decision of 3.10.2014 pursuant to Article 6(1)(b) in conjunction with Article 6(2) of Council Regulation No 139/2004 in case M.7220 Chiquita Brands International/Fyffes;

(vii) Commission decision of 19.12.2014 pursuant to Article 6(1)(b) in conjunction with Article 6(2) of Council Regulation No 139/2004 and Article 57 of the Agreement on the European Economic Area in case M.7337 IMS Health / Cegedim business;

(viii) Commission decision of 16.6.2015 declaring a concentration to be compatible with the internal market and the EEA agreement in case M.6800 - PRSfM / STIM/GEMA/JV);

(ix) Commission decision of 14.7.2015 pursuant to Article 6(1)(b) in conjunction with Article 6(2) of Council Regulation No 139/2004 and Article 57 of the Agreement on the European Economic Area in case M.7541 – IAG/Aer Lingus;

(x) Commission decision of 25.2.2016 pursuant to Article 6(1)(b) in conjunction with Article 6(2) of Council Regulation No 139/2004 and Article 57 of the Agreement on the European Economic Area in case M.7822 - Dentsply/Sirona;

(xi) Commission decision of 29.4.2016 pursuant to Article 6(1)(b) in conjunction with Article 6(2) of Council Regulation No 139/2004 and Article 57 of the Agreement on the European Economic Area in case M.7908 - CMA CGM/NOL;

(xii) Commission decision of 20.7.2016 declaring a concentration to be compatible with the internal market and the EEA Agreement in case M.7724 - ASL/Arianespace;

(xiii) Commission decision of 23.11.2016 pursuant to Article 6(1)(b) in conjunction with Article 6(2) of Council Regulation No 139/2004 and Article 57 of the Agreement on the European Economic Area in case M.8120 - Hapag-Lloyd / United Arab Shipping Company;

(xiv) Commission decision of 6.12.2016 pursuant to Article 6(1)(b) in conjunction with Article 6(2) of Council Regulation No 139/2004 and Article 57 of the Agreement on the European Economic Area in case M.8124 – Microsoft / LinkedIn;

(xv) Commission decision of 10.4.2017 pursuant to Article 6(1)(b) in conjunction with Article 6(2) of Council Regulation No 139/2004 and Article 57 of the Agreement on the European Economic Area in case M.8330 - Maersk Line/HSDG;

(xvi) Commission decision of 19.4.2017 pursuant to Article 6(1)(b) in conjunction with Article 6(2) of Council Regulation No 139/2004 and Article 57 of the Agreement on the European Economic Area in case M.8242 - Rolls Royce/ITP;

(xvii) Commission decision of 12.5.2017 pursuant to Article 6(1)(b) in conjunction with Article 6(2) of Council Regulation No 139/2004 and Article 57 of the Agreement on the European Economic Area in case - M.8314 Broadcom/Brocade;

(xviii) Commission decision of 9.6.2017 pursuant to Article 6(1)(b) in conjunction with Article 6(2) of Council Regulation No 139/2004 and Article 57 of the Agreement on the European Economic Area in Case M.8401 – Johnson & Johnson/Actelion;

(xix) Commission decision of 4.5.2018 pursuant to Article 6(1)(b) in conjunction with Article 6(2) of Council Regulation No 139/2004 and Article 57 of the Agreement on the European Economic Area in case M.8658 - UTC/Rockwell Collins;

(xx) Commission decision of 06.11.2018 pursuant to Article 6(1)(b) in conjunction with Article 6(2) of Council Regulation No 139/2004 and Article 57 of the Agreement on the European Economic Area in case M.8785 - The Walt Disney Company/Twenty-First Century Fox;

(xxi) Commission decision of 07.12.2018 pursuant to Article 6(1)(b) of Council Regulation No 139/2004 in case M.8832 - Knauf /Armstrong;

(xxii) Commission decision of 18.1.2019 declaring a concentration to be compatible with the internal market in case M.8674 BASF/Solvay's EP and P&I business;

(xxiii) Commission decision of 20.3.2019 pursuant to Article 6(1)(b) of Council Regulation No 139/2004 and Article 57 of the Agreement on the European Economic Area in case M.8948 - Spirit/ASCO;

(xxiv) Commission decision of 20.11.2018 pursuant to Article 6(1)(b) in conjunction with Article 6(2) of Council Regulation No 139/2004 and Article 57 of the Agreement on the European Economic Area in case M.8955 - Takeda/Shire;

(xxv) Commission decision of 29.11.2018 pursuant to Article 6(1)(b) in conjunction with Article 6(2) of Council Regulation No 139/2004 and Article 57 of the Agreement on the European Economic Area in case M.8951 - Suzano Papel e Celulose/Fibria Celulose;

(xxvi) Commission decision of 11.12.2018 pursuant to Article 6(1)(b) of Council Regulation 139/2004 in case M.8988 - Energizer/Spectrum Brands (Battery and Portable Lighting business);

(xxvii) Commission decision of 22.3.2019 pursuant to Article 6(1)(b) in conjunction with Article 6(2) of Council Regulation No 139/2004 and Article 57 of the Agreement on the European Economic Area in case M.9196 - Marsh & McLennan Companies/Jardine Lloyd Thompson Group;

(xxviii) Commission decision of 12.4.2019 declaring a concentration to be compatible with the internal market and the EEA Agreement in case M.8947 - Nidec / Whirlpool (Embraco business);

(xxix) Commission decision of 21.06.2019 pursuant to Article 6(1)(b) of Council Regulation No 139/2004 and Article 57 of the Agreement on the European Economic Area in case M.9234 - Harris Corporation/L3 Technologies;

(xxx) Commission decision of 05.07.2019 pursuant to Article 6(1)(b) of Council Regulation No 139/2004 and Article 57 of the Agreement on the European Economic Area in case M.9287 - Connect Airways/Flybe;

(xxxi) Commission decision of 10.07.2019 pursuant to Article 6(1)(b) of Council Regulation No 139/2004 and Article 57 of the Agreement on the European Economic Area in case M.9274 - Glaxosmithkline/Pfizer/Consumer Healthcare business;

(c) The following EU decisions made by the European Commission under Council Regulation (EC) 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty—

(i) Commission Decision of 22.2.06 relating to a proceeding under Article 82 of the EC Treaty and Article 54 of the EEA Agreement in case COMP/B2/38.381 – De Beers;

(ii) Commission Decision of 4.10.2006 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement in case COMP/C2/38.681 - The Cannes Extension Agreement;

(iii) Commission Decision of 14.7.2010 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement in case COMP/39.596 – BA/AA/IB;

(iv) Commission Decision of 20.12.2012 addressed to Thomson Reuters Corporation and Reuters Limited relating to a proceeding under Article 102 of the Treaty on the Functioning of the European Union and Article 54 of the EEA Agreement in case COMP/39.654 – Reuters Instrument Codes (RICs);

(v) Commission Decision of 7.7.2016 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement in case AT.39850 - Container Shipping;

(vi) Commission Decision of 20.7.2016 addressed to Markit Limited, Markit Group Holdings Limited, Markit Indices Limited, Markit North America, Inc, and Markit Group Limited relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement in case AT.39745 - CDS Information Market;

(vii) Commission Decision of 20.7.2016 addressed to the International Swaps and Derivatives Association, Inc. relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement in case AT.39745 - CDS Information Market;

(viii) Commission Decision of 26.7.2016 addressed to Paramount Pictures International Limited and Viacom Inc. relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union (TFEU) and Article 53 of the EEA Agreement in case AT.40023 – Cross-border access to pay-TV;

(ix) Commission Decision of 4.5.2017 relating to a proceeding under Article 102 of the Treaty on the Functioning of the European Union (TFEU) and Article 54 of the EEA Agreement in case AT.40153 – E-book MFNs and related matters;

(x) Commission Decision of 22.1.19 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union (TFEU) and Article 53 of the EEA Agreement in case COMP. AT. 40049 – MasterCard II;

(xi) Commission Decision of 7.3.2019 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union (TFEU) and Article 53 of the EEA Agreement in case AT.40023 – Cross-border access to pay-TV;

(xii) Commission Decision of 29.4.19 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union (TFEU) and Article 53 of the EEA Agreement in case COMP. AT. 39.398 – Visa MIF;

(d) any EU decision made by the European Commission under Council Regulation (EC) No 139/2004M1 on the control of concentrations between undertakings on or after 15th August 2019 and before exit day which contains commitments that relate to the supply or acquisition of goods or services in the United Kingdom;

(e) any EU decision made by the European Commission under Council Regulation (EC) 1/2003M2 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty on or after 15th August 2019 and before exit day which contains commitments that relate to the supply or acquisition of goods or services in the United Kingdom.”;

(c) after sub-paragraph (1) insert—

“(2) Sub-paragraph (1)(b), (c), (d) and (e) are subject to paragraph 2A.”.

(3) After paragraph 2 insert—

“2A.— (1) Any commitments comprised in an EU decision falling within paragraph 2(1)(b), (c), (d) or (e) that do not immediately before exit day relate to the supply or acquisition of goods or services in the United Kingdom are revoked.

(2) Where a commitment comprised in an EU decision (the “relevant EU decision”) is revoked by sub-paragraph (1)—

(a) any other provision contained in the relevant EU decision is revoked if, or to the extent that, it relates to the revoked commitment, and

(b) any decisions or approvals are revoked if, or to the extent that, they are made under, or relate to, the revoked commitment.

(3) In this paragraph “other provision” includes—

(a) obligations or conditions;

(b) procedural provision;

(c) enforcement provision.

2B.— (1) The Competition and Markets Authority must publish guidance about how it will interpret and apply the test of whether or not commitments comprised in EU decisions falling within paragraph 2(1)(b), (c), (d) or (e) relate to the supply or acquisition of goods or services in the United Kingdom.

(2) The Competition and Markets Authority may at any time publish revised guidance.”.

(4) After paragraph 10 insert—

“PART 3 U.K. Amendment and interpretation of retained EU commitments decisions

Interpretation

11.   In this Part of this Schedule—

“the CMA” means the Competition and Markets Authority;

“retained EU commitment” means a commitment comprised in a retained EU commitments decision, except a commitment which is revoked by paragraph 2A and includes—

(a)

any other provision contained in the retained EU commitments decision if, or to the extent that, it relates to the commitment, and

(b)

any EU decisions or approvals if, or to the extent that, they are made under, or relate to, the commitment

and in sub-paragraph (a) “other provision” includes obligations or conditions, procedural provision, and enforcement provision;

“retained EU commitments decision” means an EU decision falling within paragraph 2(1)(b), (c), (d) or (e).

Modification of retained EU commitments decisions

12.   On and after exit day, retained EU commitments decisions are to be read as if the following provisions were omitted—

(a) provisions relating to powers of the European Commission to review, waive, modify or substitute retained EU commitments;

(b) provisions relating to powers of the European Commission under EU law to take enforcement or remedial action of any kind where the retained EU commitments are not being or have not been complied with.

Modification of retained EU commitments

13.   On and after exit day, retained EU commitments have effect subject to the following provisions of this Part.

14.— (1) The commitments are to be read (so far as the context permits or requires) as if—

(a) any reference to the European Commission were a reference to the CMA;

(b) any reference to the area of the European Union or of the European Economic Area included the United Kingdom;

(c) any reference to the internal market included the United Kingdom;

(d) any reference to a member State included the United Kingdom;

(e) any reference to a party to the EEA agreement included the United Kingdom;

(f) any reference to “general principles of law common to the legal orders of the member States without a requirement to apply a particular national system” were omitted.

(2) Sub-paragraph (1)(d) and (e) apply even in cases where the reference concerned is expressed to be a reference to the territory of such states as are from time to time member States of the European Union or parties to the EEA Agreement.

15.   Any approval given or any other decision made under a retained EU commitments decision by the European Commission that is in force and effective immediately before exit day, is deemed to have been given or made by the CMA.

Interpretation of retained EU commitments and decisions

16.— (1) This paragraph applies to any provision of a retained EU commitment that requires the meaning or effect of the commitment to be interpreted or decided by reference to one or more of the following—

(a) EU law;

(b) EU competition law;

(c) any notice issued by the European Commission in connection with its functions under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings or Council Regulation (EC) 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty.

(2) A provision to which sub-paragraph (1) applies is to be read, so far as is consistent with any modifications made on or after exit day to the retained EU commitment containing the provision, as if any reference in the provision to—

(a) EU law or EU competition law were a reference to that law as it has effect immediately before exit day, and

(b) any notice falling within sub-paragraph (1)(c) were a reference to that notice as it has effect immediately before exit day.

17.   Other than in cases falling within paragraph 16, references in retained EU commitments to matters arising in connection with the commitments being subject to “the application of EU competition law” or “applicable EU competition rules” are to be read (so far as the context permits or requires) as if they were references to those matters being subject to the application of the Competition Act 1998 or the Enterprise Act 2002, as appropriate.

18.   Any reference in a retained EU commitments decision or a retained EU commitment to—

(a) Council Regulation (EC) 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty; or

(b) Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings,

is to be read as a reference to the EU regulation as it has effect immediately before exit day.

19.   Any reference in a retained EU commitment comprised in the EU decision falling within paragraph 2(1)(c)(vi) to Article 37(1) of Regulation (EU) No 600/2014 of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Regulation (EU) No 648/2012 M3 is to be read as a reference to that provision as it has effect immediately before exit day.”.]

Editorial Information

X1 This statutory instrument was made under a procedure whereby it ceases to have effect at the end of the period of 28 days beginning with the day on which it was made unless, during that period, the instrument is approved by a resolution of each House of Parliament. It was not approved by Parliament within that period and so has ceased to have effect.

Marginal Citations

M1 O.J. L 24, 29.1.2004, p. 1.

M2 O.J. L 24 1, 4.1.2003, p.1.

M3 O.J. L.173, 12.6.2014, p.84