The Enterprise Act 2002 (Commencement No. 3, Transitional and Transitory Provisions and Savings)Order 2003

S.I. 2003/1397 · Made 28 May 2003

COMPETITION

CONSUMER PROTECTION

Made 28th May 2003

The Secretary of State, in exercise of the powers conferred upon her by sections 276(2) and 279 of and paragraph 19(1) of Schedule 24 to the Enterprise Act 2002^f1, hereby makes the following Order:

Annotations to the whole text

Footnotes

f1: 2002 c. 40.

1Citation and interpretation
2Provisions of the Act commenced by this Order
3Exception for mergers of water or sewerage undertakers; transitory provisions etc. relating to such mergers
4Transitional provisions relating to merger references
5Savings related to section 47 of the Competition Act 1998
6Savings in relation to orders and undertakings to which the Fair Trading Act 1973 applies by virtue of Schedule 11 to the Fair Trading Act 1973
7Savings relating to proceedings under Part III of the Fair Trading Act 1973
8Savings relating to existing references and investigations to the Competition Commission under various regulatory statutes
9Savings related to the last annual report of the Director General of Fair Trading
10Savings related to repeals
11Savings related to the application of section 6 of the Fair Trading Act 1973
12Savings related to action taken following certain monopoly and other references
Signature
Schedule Provisions of the Act coming into force on 20th June 2003
Explanatory note

1Citation and interpretation

(1)

This Order may be cited as the Enterprise Act 2002 (Commencement No.3, Transitional and Transitory Provisions and Savings) Order 2003.

(2)

In this Order “the Act” means the Enterprise Act 2002.

(3)

In this Order (save where the context otherwise requires) references to sections and Schedules are references to sections of and Schedules to the Act.

2Provisions of the Act commenced by this Order

(1)

20th June 2003 is the appointed day for the coming into force of the provisions of the Act listed in the first column of the Schedule to this Order for the purposes set out in the second column.

(2)

20th June 2003 is “the appointed day” for the purposes of paragraphs 13 to 18 of Schedule 24 to the Act.

3Exception for mergers of water or sewerage undertakers; transitory provisions etc. relating to such mergers

(1)

Where the Schedule to this Order states that any amendment, repeal or revocation comes into force for all purposes subject to this paragraph, it does not come into force for purposes relating to—

(a)

the making by the Secretary of State of references under section 32 of the Water Industry Act 1991^f1 (duty to refer merger of water or sewerage undertakings), or

(b)

any references so made.

(2)

The modifications in paragraphs (3) to (5) apply until the coming into force of section 70 and Schedule 6 (which are to replace sections 32 to 35 of the Water Industry Act 1991).

(3)

Section 35(4) of the Water Industry Act 1991 shall have effect as if for the words from “the Secretary of State” to “the 1973 Act” there were substituted “the OFT or the Secretary of State, in a case in which, or to any extent to which, the Secretary of State is not required to make a reference under section 32 above, to make a reference under Part 3 of the 2002 Act”.

(4)

Paragraph 5 of Schedule 1 to the Competition Act 1998^f2 shall have effect as if in paragraph (d) for “OFT” there were substituted “Secretary of State”.

(5)

Section 121 shall have effect as if the following were omitted—

(a)

in subsection (1) the words from “and sections 32” to the end;

(b)

subsection (3)(d); and

(c)

in subsection (8) the words from “and sections 32” to the end.

(6)

Paragraph 13 of Schedule 24 shall not apply in any case in which the Secretary of State is required to make a reference under section 32 of the Water Industry Act 1991.

4Transitional provisions relating to merger references

(1)

Subject to paragraphs 15 to 18 of Schedule 24, the old law shall in particular continue to apply in relation to the enforcement, variation or release of any undertakings accepted before the appointed day under section 75G or 88 of the 1973 Act in relation to any relevant arrangements which are not otherwise dealt with by paragraph 13 of Schedule 24.

(2)

The power of the decision-making authority under section 27(5) or 29(1) (including those provisions as applied by any enactment) in relation to events or transactions is exercisable in relation to a merger which has occurred before the appointed day where the merger forms part of successive events or a series of transactions which include at least one event or transaction to which the new law applies.

(3)

Where the decision-making authority exercises its power as mentioned in paragraph (2) in relation to a merger which has occurred before the appointed day, paragraph 13(1) of Schedule 24 shall accordingly cease to apply in relation to the merger.

(4)

In this article—

“appointed day”, “relevant arrangements”, “new law” and “old law” have the same meaning as in paragraph 13 of Schedule 24;
“enactment” has the meaning given by section 129(1); and
“merger” means a ceasing of two or more enterprises to be distinct enterprises (within the meaning of Part 5 of the 1973 Act).

5Savings related to section 47 of the Competition Act 1998

The commencement of section 17 shall not have effect in relation to any decision made before the 20th June 2003 and any application to the OFT or appeal to the Competition Appeal Tribunal in relation to such a decision may be made or proceeded with notwithstanding the commencement of section 17.

6Savings in relation to orders and undertakings to which the Fair Trading Act 1973 applies by virtue of Schedule 11 to the Fair Trading Act 1973

The commencement of the amendments, repeals and revocations in Schedules 25 and 26 relating to the 1973 Act^f1 shall not have effect in relation to—

(a)

any orders which by virtue of paragraph 1 of Schedule 11 to that Act have effect as if made under that Act, or

(b)

undertakings to which paragraph 9 of Schedule 11 to that Act applies.

7Savings relating to proceedings under Part III of the Fair Trading Act 1973

Where any proceedings have been commenced under Part III of the 1973 Act before the 20th June 2003 then those proceedings shall not be affected by the repeal of Part III but may be continued until they are finally determined (including any appeals that may be brought) and the Court may make any order that it could have made on the application had Part III not been repealed.

8Savings relating to existing references and investigations to the Competition Commission under various regulatory statutes

The commencement of the provisions of Schedules 11, 25 and 26 shall not have effect in relation to any reference that is made (or, in the case of the Financial Services and Markets Act 2000^f1, any investigation that is commenced) before the 20th June 2003 under any of the following provisions—

(a)

section 11 of the Competition Act 1980^f2;

(b)

section 13 of the Telecommunications Act 1984^f3;

(c)

section 43 of the Airports Act 1986^f4;

(d)

section 24 or 41E of the Gas Act 1986^f5;

(e)

section 12 or 56C of the Electricity Act 1989^f6;

(f)

Schedule 4 to the Broadcasting Act 1990^f7;

(g)

section 12 or 14 of the Water Industry Act 1991^f8;

(h)

Article 15 of the Electricity (Northern Ireland) Order 1992^f9;

(i)

section 13 of, or Schedule 4A to, the Railways Act 1993^f10;

(j)

Article 34 of the Airports (Northern Ireland) Order 1994^f11;

(k)

Article 15 of the Gas (Northern Ireland) Order 1996^f12;

(l)

section 15 of the Postal Services Act 2000^f13;

(m)

section 162 or 306 of the Financial Services and Markets Act 2000; and

(n)

section 12 of the Transport Act 2000^f14.

9Savings related to the last annual report of the Director General of Fair Trading

The commencement of the repeal of section 125 of the 1973 Act and section 5 of the Consumer Credit Act 1974^f1 shall not have effect in relation to the making, laying and publishing of the annual report referred to in paragraph 5 of Schedule 24.

10Savings related to repeals

The commencement by this Order of the repeal of an enactment previously repealed subject to savings does not affect the continued operation of those savings.

11Savings related to the application of section 6 of the Fair Trading Act 1973

The commencement of the repeal of section 6 of the 1973 Act shall not have effect in relation to the references to that section in the Telecommunications (Licence Modification) (Mobile Public Telecommunication Operators) Regulations 1999^f1, the Telecommunications (Licence Modification) (British Telecommunications plc) Regulations 1999^f2 or the Telecommunications (Licence Modification) (Kingston Communications (Hull) plc) Regulations 1999^f3.

12Savings related to action taken following certain monopoly and other references

The commencement of the provisions of Schedules 25 and 26 in relation to the Registered Designs Act 1949^f1, the Agricultural Marketing Act 1958^f2, the Patents Act 1977^f3 and the Agricultural Marketing (Northern Ireland) Order 1982^f4 shall not have effect to prevent the taking of any action, or to affect the enforcement of any requirement or licence terms resulting from any action taken, pursuant to these enactments following a report of the Commission made before the 20th June 2003.

Signature

Stephen Timms,

Minister of State for E-Commerce and Competitiveness,

Department of Trade and Industry

28th May 2003

Provisions of the Act coming into force on 20th June 2003

Provisions of the Act	Purpose
Sections 5, 6 and 7 (general functions of OFT)	For all purposes
Section 11 (super-complaints to OFT)	For all purposes
Section 14(6)(constitution of tribunal, etc)	For all remaining purposes
Sections 16 to 20 (the Competition Appeal Tribunal)	For all purposes
Sections 22 to 69, 71 to 120 (mergers)	For all purposes
Section 121 (fees)	For all purposes
Sections 122 to 130 (mergers)	For all purposes
Part 4 (market investigations)	For all purposes
Section 185 (the Commission)	For the purposes of the provisions of Schedule 11 brought into force by this Order
Section 187 (Commission rules of procedure)	For all purposes
Part 6 (cartel offence)	For all purposes
Sections 203 to 206, 208 and 209 (miscellaneous competition provisions)	For all purposes
Part 8 (enforcement of certain consumer legislation)	For all purposes
Part 9 (information)	For all purposes
Section 276(1) (transitional or transitory provision and savings)	For all remaining purposes
Section 278 (minor and consequential amendments and repeals)	For the purpose of the provisions of Schedules 25 and 26 brought into force by this Order
In Schedule 4 (tribunal: procedure)—	For all purposes
paragraphs 2 to 26
In Schedule 5 (proceedings under Part 1 of the 1998 Act)—	For all remaining purposes
paragraphs 5 to 8
Schedule 7 (enforcement regime for public interest and special public interest cases)	For all purposes
Schedule 8 (provision that may be contained in certain enforcement orders)	For all purposes
In Schedule 9 (certain amendments of sectoral enactments)—
paragraphs 1 to 6, 8(b) and 9 to 26	For all purposes
paragraph 7	For all purposes, subject to Article 3(1) in the case of the amendment to section 17 of the Water Industry Act 1991
Schedule 10 (procedural requirements for certain enforcement undertakings and orders)	For all purposes
In Schedule 11 (the Competition Commission)—
paragraph 1	For the purpose of commencing the provisions of Schedule 11 brought into force by this Order
paragraphs 3(c), 4(d), 9	For all purposes
paragraph 10(1)	For the purpose of commencing the provisions of paragraph 10 brought into force by this Order
paragraphs 10(2) and 10(5)	For all purposes
paragraphs 10(4) and 11	For all purposes, subject to Article 3(1) in the case of the amendments of paragraphs 15(7) and 20 of Schedule 7 to the Competition Act 1998
Schedule 12 (Competition Commission: certain procedural rules)	For all purposes
Schedule 13 (listed directives)	For all purposes
Schedule 14 (specified functions)	For all purposes
Schedule 15 (enactments conferring functions)	For all purposes
In Schedule 24 (transitional and transitory provisions and savings)—
paragraphs 13 to 19 and 21	For all purposes
In Schedule 25 (minor and consequential amendments)—
paragraphs 1(1), 8(1), 18(1) and 38(1)	For the purpose of the other entries in paragraphs 1, 8, 18 and 38 commenced by this Order
paragraphs 2(1), 5(1), 13(1), 14(1), 15(1), 20(1), 21(1), 24(1), 25(1), 28(1), 30(1), 33(1), 36(1), 40(1), 42(1), 43(1), 44(1)	For all remaining purposes
paragraphs 1(2), 8(3) and 18(2) to (5)	For all purposes, subject to Article 3(1) in the case of the amendments to paragraph (b) in section 11A(1) of the Registered Designs Act 1949,^f1 paragraph (b) in section 51(1) of the Patents Act 1977,^f2 and sections 144 and 238 of and Schedule 2A to the Copyright, Designs and Patents Act 1988^f3
paragraphs 1(3), 2(2), 2(3), 5(3), 5(4)(a)(ii), 5(4)(a)(iii), 5(4)(b), 8(2), 8(4), 10, 12, 13(3) to 13(5), 13(7), 13(8)(a), 13(9)(c)(ii), 13(10), 14(2) to 14(4), 15(3) to 15(6), 15(11) to 15(13), 20(3) to 20(6), 20(10)(b), 20(11), 20(12), 20(13), 21(4)(g), 24(9)(d)(ii), 24(9)(e), 24(9)(f)(ii), 24(9)(f)(iii), 24(9)(i)(iii), 24(9)(j), 25(3) to 25(6), 25(9), 25(10)(b), 28(2) to 28(4), 28(7)(b), 29, 30(2)(a), 30(2)(c), 30(3) to 30(6), 30(8), 30(11)(b), 30(15), 31, 33(2) to 33(4), 36(2) to 36(4), 36(7), 36(8), 38(35), 38(49), 40(20)(b) and 40(20)(c), 42(2) to 42(4), 42(5), 43(3)(c)(ii) and 44(2) to 44(5)	For all purposes
paragraphs 38(2) and 38(50)(a) to (c)	For all purposes, subject to Article 3(1) in the case of the amendments to the existing references to the Fair Trading Act 1973 in section 3(4)(b) of and paragraphs 1 and 2 of Schedule 1 to the Competition Act 1998^f4
paragraph 38(50)(d)	For all purposes
In Schedule 26 (repeals and revocations) all the entries relating to the—
Agricultural Marketing Act 1958^f5	For all purposes
Trade Descriptions Act 1968^f6	For all purposes
Prices Act 1974^f7	For all purposes
Telecommunications Act 1984^f8	For all purposes
Companies Consolidation (Consequential Provisions) Act 1985^f9	For all purposes, subject to Article 3(1)
Weights and Measures Act 1985^f10	For all purposes
Airports Act 1986^f11	For all purposes
Consumer Protection Act 1987^f12	For all purposes
Copyright, Designs and Patents Act 1988	For all purposes
Consumer Protection (Northern Ireland) Order 1987^f13	For all purposes
Control of Misleading Advertisements Regulations 1988^f14	For all purposes
Water Act 1989^f15	For all purposes
EEC Merger Control (Consequential Provisions) Regulations 1990^f16	For all purposes, subject to Article 3(1)
Property Misdescriptions Act 1991^f17	For all purposes
Timeshare Act 1992^f18	For all purposes
Coal Industry Act 1994^f19	For all purposes
Airports (Northern Ireland) Order 1994^f20	For all purposes
Channel Tunnel Rail Link Act 1996^f21	For all purposes
Deregulation (Fair Trading Act 1973) (Amendment) (Merger Reference Time Limits) Order 1996^f22	For all purposes, subject to Article 3(1)
Competition Act 1998 (Competition Commission) Transitional, Consequential and Supplemental Provisions Order 1999^f23	For all purposes
Financial Services and Markets Act 2000^f24	For all purposes
Regulation of Investigatory Powers Act 2000^f25	For all purposes
Postal Services Act 2000^f26	For all purposes
Utilities Act 2000^f27	For all purposes
Transport Act 2000^f28	For all purposes
Competition Act 1998 (Transitional, Consequential and Supplemental Provisions) Order 2000^f29	For all purposes
Anti-terrorism, Crime and Security Act 2001^f30	For all purposes
Stop Now Orders (E.C. Directive) Regulations 2001^f31	For all purposes
EC Competition Law (Articles 84 and 85) Enforcement Regulations 2001^f32	For all purposes
In Schedule 26 (repeals and revocations) the entries relating to the—
Registered Designs Act 1949^f33,
section 11A(1)(a)	For all purposes
section 11A(1)(b)	For all purposes, subject to Article 3(1)
Fair Trading Act 1973^f34,
sections 2, 3, 5, 6 to 11, 30, 34 to 42, 44 to 56G	For all purposes
sections 63 to 76, 77, 78 to 81, 82, 83, 84, 86, 88 to 93A	For all purposes, subject to Article 3(1)
section 93B	For all purposes
section 124	For all purposes
section 125	For all purposes
section 129	For all purposes, subject to Article 3(1)
sections 130 and 131	For all purposes
section 132	For all purposes, subject to Article 3(1)
section 133	For all purposes
the definition of the Advisory Committee" in section 137(2)	For all purposes
section 138	For all purposes, subject to Article 3(1)
Schedules 4 to 7	For all purposes
Schedules 8 and 9	For all purposes, subject to Article 3(1)
Schedule 12	For all purposes
Consumer Credit Act 1974^f35,
sections 5, 161(2) and 174 and Schedule 4	For all purposes
Patents Act 1977^f36,
section 51(1)(a)	For all purposes
section 51(1)(b)	For all purposes, subject to Article 3(1)
Estate Agents Act 1979^f37,
sections 9(5), 10 and 26(2)	For all purposes
Competition Act 1980^f38,
sections 11, 16, 17, 18, 19, 20, 21, 24 and 31	For all purposes
Gas Act 1986^f39,
sections 24, 26A, 27, 41E and Schedule 7	For all purposes
Electricity Act 1989^f40,
sections 12, 14A, 43(6), 43(7), 56C and Schedule 16	For all purposes
Companies Act 1989^f41,
sections 146 to 150	For all purposes, subject to Article 3(1)
Schedule 14	For all purposes
Schedule 20	For all purposes, subject to Article 3(1)
Courts and Legal Services Act 1990^f42,
Schedule 18	For all purposes
Broadcasting Act 1990^f43,
section 192 and Schedules 4 and 20	For all purposes
Water Industry Act 1991^f44,
sections 14 and 31	For all purposes
Water Consolidation (Consequential Provisions) Act 1991^f45,
paragraphs 24, 26, 33 and 34 in Schedule 1	For all purposes
Electricity (Northern Ireland) Order 1992^f46,
Articles 15, 46(6) and 46(7) and Schedule 12	For all purposes
Railways Act 1993^f47,
sections 4, 13, 66, 67 and Schedule 12	For all purposes
Deregulation and Contracting Out Act 1994^f48,
section 7(1), Schedule 2, paragraph 2 in Schedule 4 and paragraph 2(4) in Schedule 11	For all purposes
section 9 and paragraph 2(3) in Schedule 11	For all purposes, subject to Article 3(1)
Gas (Northern Ireland) Order 1996^f49	For all purposes
Competition Act 1998^f50,
sections 46(3)(h), 55, 56, 66 and 67, paragraphs 10 and 23 to 27 in Schedule 7, Schedule 10, Schedule 11, and paragraphs 1(4) to 1(7), 1(14), 4(4), 4(9), 4(10) and 10 in Schedule 12	For all purposes
paragraph 15(7) in Schedule 7	For all purposes, subject to Article 3(1)
paragraphs 4(3), 4(12) and 4(15)(a) in Schedule 12	For all purposes
Insolvency Act 2000^f51,
paragraph 13(3) in Schedule 4	For all purposes

Explanatory note

(This note is not part of the Order)

This Order brings into force on 20th June 2003 certain provisions of the Enterprise Act 2002 (“the Act”). In particular it commences the following provisions:—

(a)

The remaining provisions of Part 1 not previously commenced: sections 5 to 7, which provide for the Office of Fair Trading (“OFT”) to perform various functions, and section 11, which allows for the making of super-complaints to the OFT;

(b)

Section 16, which permits the making of regulations enabling the transfers of certain proceedings concerning the infringement of competition law prohibitions between the courts and the Competition Appeal Tribunal;

(c)

All the provisions of Part 3 relating to mergers, other than those relating to mergers between water enterprises;

(d)

Part 4, which provides for the making of market investigation references to the Competition Commission and the conduct of such references;

(e)

The provisions of Part 5 not previously commenced. These in particular enable the Chairman of the Competition Commission to make rules of procedure in relation to the conduct of various reference groups of the Competition Commission;

(f)

Part 6, which creates a cartel offence, and makes provision in relation to its investigation and prosecution;

(g)

The provisions of Part 7 not previously commenced. Section 203 amends the provisions of the Competition Act 1998 authorising the granting of warrants giving powers of entry for the purposes of investigations into breaches of competition law. Section 204 amends the Company Directors Disqualification Act 1986 to permit the disqualification of directors involved in breaches of competition law. Section 205 permits specified consumer bodies to make super-complaints to various sectoral regulators. Section 206 permits modifications to the enforcement powers exercisable following merger and market investigations that are specified in Schedule 8. Section 208 repeals the powers to make references to the Competition Commission in Part 6 of the Fair Trading Act 1973. Section 209 gives the Secretary of State the power to modify the Competition Act 1998 and other legislation in connection with the making of regulations or directives giving effect to the principles set out in Articles 81 and 82 of the EC Treaty;

(h)

Part 8, which provides for the enforcement of certain consumer legislation;

(i)

Part 9, which places restrictions on the disclosure of information which comes to a public authority in connection with the exercise of functions under or by virtue of the Act and provision made under it, or such other legislation as is or may be specified;

(j)

Various miscellaneous provisions in Part 11 and in the Schedules to the Act related to the above provisions, including various transitional and consequential provisions, and certain repeals.

The Order makes transitory provision to enable the continued application of the existing law relating to mergers of water and sewerage undertakings until the commencement of the provisions of the Act (in particular, section 70 and Schedule 6) which relate to water mergers. It also contains transitional provisions relating to certain mergers and various savings.

The Enterprise Act 2002 (Commencement No. 3, Transitional and Transitory Provisions and Savings)Order 2003

Annotations to the whole text

Footnotes

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