The Competition (Amendment etc.) (EU Exit) Regulations 2019

PART 1 Introduction

Citation, commencement and extent

1.—(1) These Regulations may be cited as the Competition (Amendment etc.) (EU Exit) Regulations 2019 and come into force on exit day.

(2) An amendment, repeal or revocation made by these Regulations has the same extent as the provision to which it relates.

(3) Transitional or saving provision made by these Regulations has the same extent as the provision to which it relates.

PART 2 Amendment of the Competition Act 1998

2.  The Competition Act 1998(1) is amended as follows.

3.—(1) Section 10(2) is amended as follows.

(2) In the heading, for “Parallel exemptions” substitute “Retained exemptions”.

(3) Before subsection (1) insert—

“(A1) An agreement is exempt from the Chapter I prohibition if it falls within a category of agreements specified as exempt in a retained block exemption regulation.”.

(4) Omit subsections (1) and (2).

(5) In subsection (3), for “parallel exemption” substitute “retained exemption”.

(6) In subsection (4)—

(a) for “parallel exemption” substitute “retained exemption”;

(b) omit paragraph (a) (together with the final “and”);

(c) in paragraph (b), for “exemption from the Community prohibition” substitute “retained block exemption regulation”.

(7) In subsection (5)—

(a) in paragraph (a)—

(i) for “parallel exemption” substitute “retained exemption”;

(ii) after “effect” insert “in respect of an agreement”;

(b) in paragraph (d), after “exemption” insert “in respect of an agreement”.

(8) Omit subsections (9) to (11).

(9) After subsection (11), insert—

“(12)  In this Part, “retained block exemption regulation” means the following regulations as amended from time to time—

(a) Council Regulation (EC) 169/2009 applying rules of competition to transport by rail, road and inland waterway;

(b) Commission Regulation (EC) 906/2009 on the application of Article 81(3) of the Treaty to certain categories of agreements, decisions and concerted practices between liner shipping companies (consortia);

(c) Commission Regulation (EU) 330/2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices;

(d) Commission Regulation (EU) 461/2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices in the motor vehicle sector;

(e) Commission Regulation (EU) 1217/2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to certain categories of research and development agreements;

(f) Commission Regulation (EU) 1218/2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to certain categories of specialisation agreements;

(g) Commission Regulation (EU) 316/2014 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of technology transfer agreements.”.

4.  After section 10 insert—

“10A    Power to vary etc retained block exemption regulations

(1) The Secretary of State may by regulations vary or revoke a retained block exemption regulation.

(2) In exercising the power under subsection (1), the Secretary of State must have regard to the conditions specified in section 9(1) for exemption from the Chapter 1 prohibition.

(3) If, in the opinion of the CMA, it is appropriate to vary or revoke a retained block exemption regulation, the CMA may make a recommendation to that effect to the Secretary of State.

(4) Before making a recommendation under subsection (3), the CMA must—

(a) publish details of its proposed recommendation in such a way as it thinks most suitable for bringing it to the attention of those likely to be affected; and

(b) consider any representations about it which are made to it.

(5) Before exercising the power to vary or revoke a retained block exemption regulation (in a case where there has been no recommendation under subsection (3)), the Secretary of State must—

(a) inform the CMA of the proposed variation or revocation; and

(b) take into account any comments made by the CMA.”.

5.  Omit section 11(3).

6.—(1) Section 25(4) is amended as follows.

(2) Omit subsections (3), (5) and (7).

(3) In subsection (8)(a), for “parallel exemption” substitute “retained exemption”.

(4) Omit subsection (9).

(5) In subsection (10), for “parallel exemption” substitute “retained exemption”.

(6) Omit subsection (11).

(7) In subsection (12), omit “or (7)”.

7.  In section 25A(1)(b)(5), for “subsections (2) to (7)” substitute “subsections (2), (4) and (6)”.

8.  In section 31(2)(6)—

(a) at the end of paragraph (a), insert “or”;

(b) omit paragraphs (c) and (d).

9.  In section 32(1)(7), omit “or that it infringes the prohibition in Article 101(1)”.

10.  In section 33(1)(8), omit “or that it infringes the prohibition in Article 102”.

11.  In section 35(9)—

(a) in subsection (1), for “subsections (8) and (9)” substitute “subsection (8)”;

(b) in subsection (6), for “section 25(2), (3), (6) and (7)” substitute “section 25(2) and (6)”;

(c) in subsection (7), for “section 25(4) and (5)” substitute “section 25(4)”;

(d) omit subsection (9).

12.  In section 36(10)—

(a) in subsection (1), omit “or that it has infringed the prohibition in Article 101(1)”;

(b) in subsection (2), omit “or that it has infringed the prohibition in Article 102”;

(c) in subsection (7A)(b)—

(i) in sub-paragraph (i), omit “or the prohibition in Article 81(1)”;

(ii) in sub-paragraph (ii), omit “or the prohibition in Article 82”.

13.  In section 38(11)—

(a) in subsection (1), for the words from “the Chapter 1 prohibition” to the end substitute “the Chapter 1 prohibition or the Chapter 2 prohibition.”;

(b) omit subsection (1A);

(c) omit subsections (9) and (10).

14.  In section 46(3)(12)—

(a) omit paragraphs (b) and (d);

(b) in paragraph (e), for “parallel exemption” substitute “retained exemption”;

(c) omit paragraph (f).

15.  In section 47(1)(a)(13), for “paragraphs (a) to (f)” substitute “paragraph (a), (c) or (e)”.

16.—(1) Section 47A(14) is amended as follows.

(2) In subsection (2)—

(a) at the end of paragraph (a), insert “or”;

(b) omit paragraphs (c) and (d).

(3) For subsection (6) substitute—

“(6) In this Part (except in section 49C) “infringement decision” means—

(a) a decision of the CMA that the Chapter I prohibition or the Chapter II prohibition has been infringed, or

(b) a decision of the Tribunal on an appeal from the decision of the CMA that the Chapter I prohibition or the Chapter II prohibition has been infringed.”.

17.  In section 49C(11)(15), for the definition of “infringement decision” (but not the final “and”) substitute—

““infringement decision” means a decision of the CMA that the Chapter I prohibition or the Chapter II prohibition has been infringed,”.

18.  In section 52, omit subsection (1A)(16).

19.—(1) Section 58(2)(17) is amended as follows.

(2) In the definition of “Part I proceedings”—

(a) at the end of paragraph (za), insert “or”;

(b) omit paragraph (b) and the “or” before it.

(3) In the definition of “relevant party”—

(a) in paragraph (a), omit “or the prohibition in Article 101(1)”;

(b) in paragraph (b), omit “or the prohibition in Article 102”.

20.  In section 58A(18), omit subsection (4).

21.—(1) Section 59(1)(19) is amended as follows.

(2) Omit the definitions of—

(a) “Article 101(1)”;

(b) “Article 101(3)”;

(c) “Article 102”;

(d) “the Commission”;

(e) “the Council”;

(f) “the EEA Agreement”;

(g) “the European Court”;

(h) “the EC Competition Regulation”;

(i) “parallel exemption”;

(j) “section 11 exemption” (including the final “and”);

(k) “the Treaty”.

(3) In the definition of “the court”, for “60” substitute “60A”.

(4) At the appropriate places, insert—

““retained block exemption regulation” has the meaning given in section 10(12);”;

““retained exemption” has the meaning given in section 10(3);”.

22.  Omit section 60(20)).

23.  After section 60 insert—

“60A    Certain principles etc to be considered or applied from exit day

(1) This section applies when one of the following persons determines a question arising under this Part in relation to competition within the United Kingdom—

(a) a court or tribunal;

(b) the CMA;

(c) a person acting on behalf of the CMA in connection with a matter arising under this Part.

(2) The person must act (so far as is compatible with the provisions of this Part) with a view to securing that there is no inconsistency between—

(a) the principles that it applies, and the decision that it reaches, in determining the question, and

(b) the principles laid down by the Treaty on the Functioning of the European Union and the European Court before exit day, and any relevant decision made by that Court before exit day, so far as applicable immediately before exit day in determining any corresponding question arising in EU law,

subject to subsections (4) to (7).

(3) The person must, in addition, have regard to any relevant decision or statement of the European Commission made before exit day and not withdrawn.

(4) Subsection (2) does not require the person to secure that there is no inconsistency with a principle or decision referred to in subsection (2)(b) so far as the principle or decision is excluded from the law of England and Wales, Scotland and Northern Ireland on or after exit day.

(5) For the purposes of subsection (4), a principle or decision is to be treated as not excluded from the law of England and Wales, Scotland and Northern Ireland if it is excluded only by virtue of an exclusion or revocation in the Competition (Amendment etc.) (EU Exit) Regulations 2019.

(6) Subsection (2) does not apply so far as the person is bound by a principle laid down by, or a decision of, a court or tribunal in England and Wales, Scotland or Northern Ireland that requires the person to act otherwise.

(7) Subsection (2) does not apply if the person thinks that it is appropriate to act otherwise in the light of one or more of the following—

(a) differences between the provisions of this Part under consideration and the corresponding provisions of EU law as those provisions of EU law had effect immediately before exit day;

(b) differences between markets in the United Kingdom and markets in the European Union;

(c) developments in forms of economic activity since the time when the principle or decision referred to in subsection (2)(b) was laid down or made;

(d) generally accepted principles of competition analysis or the generally accepted application of such principles;

(e) a principle laid down, or decision made, by the European Court on or after exit day;

(f) the particular circumstances under consideration.

(8) In subsection (2)(b), the reference to principles laid down before exit day is a reference to such principles as they have effect in EU law immediately before exit day, disregarding the effect of principles laid down, and decisions made, by the European Court on or after exit day.

(9) In this section, references to a decision of the European Court or the European Commission include a decision as to—

(a) the interpretation of a provision of EU law;

(b) the civil liability of an undertaking for harm caused by its infringement of EU law.”.

24.  Omit Parts 2 and 2A(21).

25.  In section 72(1)(22), omit “, 65 or 65L to 65N”.

26.—(1) Section 73(23) is amended as follows.

(2) In subsection (4)—

(a) omit “or 65D”;

(b) in paragraph (a), omit “or (as the case may be) section 65F”;

(c) in paragraph (b), for “none of sections 28, 28A, 65G and 65H applies” substitute “sections 28 and 28A do not apply”.

(3) Omit subsection (6).

(4) In subsection (6A), for “subsections (4) and (6)” substitute “subsection (4)”;

(5) In subsection (8)—

(a) in paragraph (a), omit “or 65F”;

(b) in paragraph (b), for “section 28, 28A, 62, 62A, 63, 65G or 65H” substitute “section 28 or 28A”.

27.  Omit section 75A(24).

28.  In Schedule 1, omit Part 2(25).

29.—(1) Schedule 3 is amended as follows.

(2) Omit paragraph 3(26) (and the italic heading before it).

(3) In paragraph 5, in sub-paragraph (3), omit paragraphs (b) and (c).

30.—(1) Schedule 8A(27) is amended as follows.

(2) In paragraph 2(1)—

(a) at the end of paragraph (a), insert “and”;

(b) omit paragraphs (c) and (d).

(3) In paragraph 3—

(a) in sub-paragraph (1)—

(i) at the end of paragraph (a), insert “and”;

(ii) omit paragraphs (c) and (d);

(b) omit sub-paragraph (2);

(c) in sub-paragraph (4)—

(i) for “Subsections (3) and (4) of section 58A apply” substitute “Section 58A(3) applies”;

(ii) for “the CMA, a regulator or the Commission” substitute “the CMA or a regulator”;

(d) omit sub-paragraphs (5) and (6).

(4) In paragraph 12—

(a) in sub-paragraph (5), at the end insert “(“the SME Annex”), subject to sub-paragraph (6)”;

(b) after sub-paragraph (5), insert—

“(6) For the purposes of this paragraph, the SME Annex has effect as if—

(a) in Article 2(1), for “EUR 50 million and/or an annual balance sheet total not exceeding EUR 43 million” there were substituted “£44,000,000 and/or an annual balance sheet total not exceeding £38,000,000”;

(b) in Article 2(2), for “EUR 10 million” there were substituted “£8,800,000”;

(c) in Article 2(3), for “EUR 2 million” there were substituted “£1,750,000”;

(d) in Article 3(2)(a), for “EUR 1 250 000” there were substituted “£1,100,000”;

(e) in Article 3(2)(d), for “EUR 10 million” there were substituted “£8,800,000”;

(f) in Article 3(5), for “by national or Community rules” there were substituted “under the law of the United Kingdom (or any part of it)”;

(g) in Article 5(b), for “national law” there were substituted “the law of the United Kingdom (or any part of it)”.”.

(5) In paragraph 14(1)(a), omit “or the prohibition in Article 101(1)”.

(6) Omit paragraph 35 (and the italic heading before it).

31.—(1) Schedule 9 is amended as follows.

(2) In paragraph 5(1)(d)(28)—

(a) at the end of sub-paragraph (i), insert “or”;

(b) omit sub-paragraph (ii);

(c) omit sub-paragraph (iv) and the “or” before it.

(3) In paragraph 5(2)(29)—

(a) at the end of paragraph (a), insert “or”;

(b) omit paragraph (b);

(c) omit paragraph (d) and the “or” before it.

(4) In paragraph 8(30), omit sub-paragraph (b);

(5) For the italic heading before paragraph 9 substitute “Retained exemptions”.

(6) In paragraph 9(a)(i), for “parallel exemption” substitute “retained exemption”.

(7) Omit paragraph 10 and the italic heading before it.

PART 3 Amendment of the Enterprise Act 2002

32.  The Enterprise Act 2002(31) is amended as follows.

33.  In section 16(6)(32), for the definition of “infringement issue” substitute—

““infringement issue” means any question relating to whether or not an infringement of the Chapter I prohibition or the Chapter II prohibition has been or is being committed;”.

34.—(1) Section 22(33) is amended as follows.

(2) In subsection (3)—

(a) at the end of paragraph (c), insert “or”;

(b) omit paragraphs (e) and (f).

(3) Omit subsection (3A).

35.  In section 25(34)—

(a) omit subsections (6), (7) and (8);

(b) in subsection (10)(b), for “subsections (2), (4) and (6)” substitute “subsections (2) and (4)”.

36.—(1) Section 33(35) is amended as follows.

(2) In subsection (3)—

(a) at the end of paragraph (c), insert “or”;

(b) omit paragraphs (e) and (f).

(3) Omit subsection (3A).

37.  In section 34(1)(b), for “, 59(2) or 67(2)” substitute “or 59(2)”.

38.  In section 34ZA(36), omit subsection (5).

39.  In section 34ZB, omit subsections (5) and (8).

40.—(1) Section 34ZC is amended as follows.

(2) In subsection (1), for “subsections (1), (4) or (5)” substitute “subsections (1) or (4)”.

(3) In subsection (3), for “section 34ZB(1), (4), or (5)” substitute “section 34ZB(1) or (4)”.

(4) In subsection (4)(b), for “one or more of subsections (1) and (5)” substitute “subsection (1)”.

41.  Omit section 34A(37) (and the italic heading before it).

42.—(1) Section 42(38) is amended as follows.

(2) In subsection (1)(d)—

(a) in sub-paragraph (i)—

(i) for “section 22(3)(za), (a) or (e)” substitute “section 22(3)(za) or (a)”;

(ii) for “33(3)(za), (a) or (e)” substitute “33(3)(za) or (a)”;

(b) omit sub-paragraph (ii) and the “or” before it.

(3) In subsection (6)—

(a) in paragraph (b), omit “, (6) and (8)”;

(b) in paragraph (f), for “after the word “(4)” there were inserted “, (5A)”” substitute “for “and (4)” there were substituted “, (4) and (5A)””.

43.  In section 46(39)—

(a) in subsection (1), omit paragraphs (b) and (c);

(b) omit subsection (1A).

44.  Omit sections 46A(40) and 46B (and the italic heading before section 46A).

45.  In section 58(41)—

(a) in subsection (2), omit the words from “; and in this subsection” to the end;

(b) in subsection (2D), omit the words from “(other than” to the end.

46.  In section 59(6)(c)(42), omit “, (6) and (8)”.

47.  Omit sections 67(43) and 68(44) (and the italic heading before section 67).

48.  In section 73A(1)(45), omit paragraph (b) and the “or” before it.

49.  In section 99(5)—

(a) at the end of paragraph (b), insert “or”;

(b) omit paragraph (d)(46) and the “or” before it.

50.  In section 107(1)(47), omit paragraphs (ae), (af), (ag) and (ah).

51.—(1) Section 110B(48) is amended as follows.

(2) In subsection (1), omit paragraph (e).

(3) In subsection (2), omit paragraph (e).

(4) In subsection (3), omit paragraph (d).

(5) In subsection (4), omit paragraph (d).

52.  Omit section 122(49).

53.—(1) Section 124(50) is amended as follows.

(2) In subsection (4), omit “68,”.

(3) In subsection (5), for “, 59(5) and 67(7)” substitute “and 59(5)”.

(4) In subsection (6), omit “68,”.

54.  In section 129(1)(51)—

(a) omit the definition of “EU law”;

(b) omit the definition of “the EC Merger Regulation”.

55.  In section 130(52), in the table—

(a) omit the entry for “EU law”;

(b) omit the entry for “EC Merger Regulation”;

(c) in the entry for “Public interest consideration”, in the second column, for “Sections 42(3) and 67(9)” substitute “Section 42(3)”.

56.  In section 153(2)(53), omit the words from “; and in this subsection” to the end.

57.  In section 171(54), omit subsections (6) and (11).

58.  Omit section 209(55).

59.  Omit section 240(56).

PART 4 Amendment of other primary legislation

60.  Schedule 1 (which amends other primary legislation) has effect.

PART 5 Amendment of subordinate legislation

61.  Schedule 2 (which amends subordinate legislation) has effect.

PART 6 Amendment of retained EU law

Cessation of Treaty Rights and Obligations

62.  Any rights, powers, liabilities, obligations, restrictions, remedies and procedures which—

(a) continue by virtue of section 4(1) of the European Union (Withdrawal) Act 2018; and

(b) are derived from Articles 101, 102, 106(1) or 106(2) of the Treaty of the Functioning of the European Union or from Articles 53, 54, 57(1), 59(1) or 59(2) of the EEA Agreement

cease to be recognised and available in domestic law (and to be enforced, allowed and followed accordingly) on the coming into force of these Regulations.

Amendment of retained direct EU legislation

63.  In Schedule 3—

(a) Part 1 revokes certain retained direct EU legislation;

(b) Part 2 amends certain retained EU Regulations.

PART 7 Saving and transitional provision

64.  Schedule 4 (which makes saving and transitional provision) has effect.

We consent to the making of these Regulations

Rebecca Harris

Paul Maynard

Two of the Lords Commissioners of Her Majesty’s Treasury

17th January 2019

Kelly Tolhurst

Minister for Small Business, Consumers and Corporate Responsibility

Department for Business, Energy and Industrial Strategy

22nd January 2019