UK: Enterprise Act 2002: Market Investigations

Last Updated: 13 June 2003

The market investigation provisions of the Enterprise Act 2002 replace the monopoly provisions of the Fair Trading Act 1973 (the "FTA"). The market investigation provisions of the Act ensure that designated UK competition authorities continue to have the power to investigate markets without the need to show, as would be required for investigation under Chapter II of the CA98, an agreement between the firms in the market or any abuse of a dominant position (held either by a single firm or multiple firms).

The new market investigations regime – like its predecessor – comprises two stages: an initial investigation of potential problems in a market by the Office of Fair Trading (the "OFT"), and, if necessary, a reference to the Competition Commission ("CC") for fuller investigation. If the CC investigation results in adverse findings, there is scope for remedies to be adopted. They are essentially forward looking, and do not have the effect of declaring firms’ past conduct to have been unlawful. In this respect, the regime is in stark contrast to the prohibitions in the CA98.

The following summary describes the market investigation provisions of the Enterprise Act, and draws attention to the key differences from the previously applicable monopoly provisions of the FTA.

Who can initiate a market investigation?

There are essentially three ways in which a market investigation reference may be made, namely by:

  • the OFT (which may make a reference either of its own volition or pursuant to a "super complaint", see following) (S 131);

  • the sectoral regulators (comprising the Director General for Telecommunications, the Gas and Electricity Markets Authority, the Director General for Water Services, the Director General of Electricity Supply for Northern Ireland, the Director General of Gas For Northern Ireland, the Rail Regulator and the Civil Aviation Authority) (S 131); and

  • the appropriate Minister, in specified circumstances (S 132).

Primary responsibility for making market investigation references will lie with the OFT. In anticipation of this role the OFT established a division entitled the "Markets and Policy Initiatives Division" under the leadership of Jonathan May to monitor markets and conduct preliminary investigations to determine whether markets might warrant investigation. This formalises the position that pre-existed under the FTA.

The Enterprise Act establishes a new procedure for the making and handling of "super-complaints". Section 11 of the Act requires the OFT, upon receipt of a complaint from a designated consumer body, to publish its response to the complaint within 90 days, stating whether or not it will take action in response to the complaint. (As at the date of publication, the Secretary of State has not published an order listing the consumer bodies that will have the power to make such complaints.)

A designated body will be able to make a complaint if it concludes that there is a feature, or combination of features, of a market in the UK that appears to be significantly harming the interests of consumers. For these purposes, consumers comprise individuals who receive the goods or services other than in the course of business – essentially end users acting as consumers (S 183(1)).

These provisions of the Enterprise Act will therefore create a strict timetable pursuant to which the OFT must fast-track its response to complaints made by designated consumer bodies.

What conditions must be met for a market investigation to be undertaken?

The circumstances in which a market investigation reference may be made to the CC are as follows.

In summary:

  • if the OFT is to make a reference, it must be satisfied that the conditions specified at S 131 of the Act are met;

  • if a relevant Minister is to make a reference, he/she must suspect that the same conditions as specified at S 131 are met and either (1) the OFT must have decided not to make a reference under S 131, or, (2) if the Minister has provided the OFT with information relevant to the question of whether or not a reference should be made, he/she must be not satisfied that the OFT will make a reference within a reasonable delay (S 132).

S 131 Conditions for a market Investigation

The conditions identified in the Act which must be met if the OFT is to have the power to refer matters to the CC for investigation are as follows:

  • the OFT must have reasonable grounds for suspecting that any feature, or combination of features of a market in the UK for goods or services prevents, restricts or distorts competition in connection with the supply or acquisition of any goods or services in the UK or a part of the UK (S 131(1)); and

  • the market must not have formed the basis of any undertaking given in lieu of a reference within the last 12 months (S 131(4)(a)); and

  • the market must not have been the subject of a ministerial reference to the CC which has not yet been determined (S 131(4)(b)).

A "feature" of the market in the UK for goods or services is defined to cover:

  • the structure of the market concerned or any aspect of that structure;

  • any conduct (whether or not in the market concerned) of one or more than one person who supplies or acquires goods or services in the market concerned; or

  • any conduct relating to the market concerned of customers of any person who supplies or acquires goods or services (S 131(2)).

It is to be noted that, if these tests are met, then the OFT has a power, rather than a duty, to make a reference. It is also to be noted that the "features" of the market which may form the basis of a reference are far more widely defined than the "conduct" of potential monopolists, which was the basis for intervention under the rules of the FTA on complex monopolies.

Additional non-statutory criteria that must be satisfied for a market investigation to be undertaken

In deciding how to exercise its power to make a market investigation reference, the OFT is obliged to act rationally, by reference to relevant criteria. The OFT’s Guidance notes state that the OFT will only make references to the CC when in addition to the reference test at S 131 being met, each of the following criteria are also met:

  • it would not be more appropriate to deal with the competition issues identified by applying CA98 or using other powers available to the OFT, or, where appropriate, sectoral regulators;

  • it would not be more appropriate to address the problem identified by means of undertakings in lieu of a reference

  • the scale of the suspected problem, in terms of its adverse effect on competition, is such that a reference would be an appropriate response to it;

  • there is a reasonable chance that appropriate remedies will be available.

The OFT’s Guidance sets out the questions which the OFT will be expected to address in determining each of these issues and a brief overview of the more interesting issues raised in this context is set out following.

Whether the market investigation is appropriate

The OFT should be expected to weigh up whether it is more appropriate for an investigation to be conducted under the CA98 or any other powers available to the OFT, and in due course, the OFT will be obliged, following "modernisation" of the application of Articles 81 and 82 EC, to apply EC law rather than national law in certain circumstances.

  • CA98 investigation vs Enterprise Act market investigation
In order to take action under the CA98, the OFT must either show the existence of an agreement which restricts competition (Chapter I) or the abuse of a dominant market position (Chapter II). The market investigation powers and remedies are therefore to be used to plug the gap which remains to control anti-competitive, non-collusive, practices which are adopted by firms who are not dominant in a relevant market, and to deal with other market failures, caused by features other than the conduct of firms active on the market.

Given the uncertainty as to how far the Chapter II prohibition allows intervention to deal with cases of collective dominance, it appears likely that the OFT may choose to use its market investigation powers, rather than its powers under the Chapter II prohibition, to deal with cases which may, on examination, fall to be regarded as cases of collective dominance. The OFT has stated, for example, that a market investigation might be a better way of proceeding as, "a market investigation reference will be able to address wider competition concerns than could be addressed by a CA98 case…" (para 2.5 OFT Guidance, Market Investigation References).

It should also be noted that vertical agreements which are presently excluded from the application of the Chapter I prohibition by virtue of the Exclusion Order might also form the basis of a market investigation. This will enable the OFT to investigate networks of parallel agreements which may not merit prohibition or penalty under the Chapter I prohibition but which may have features which have adverse effects on competition which may be remedied using the powers under the Enterprise Act (but see following, the impact of modernisation).

  • The impact of modernisation 
The modernisation of the application of Articles 81 and 82 EC (pursuant to the entry into force of Council Regulation 1/2003 on 1 May 2004) may restrict the OFT’s freedom to make a market investigation reference under the Enterprise Act.

The modernisation regulation decentralises the application and enforcement of Articles 81 and 82 EC and imposes an obligation upon national competition authorities and national courts not to apply national competition law to agreements which may affect trade between member States and therefore fall to be considered under Article 81 where:

  • the agreements do not restrict competition within the meaning of Article 81(1) EC; or 
  • the restrictive terms of the agreement meet the requirements for an individual exemption under Article 81(3) EC; or

  • the terms are covered by an EC block exemption.

The guidance on market investigations issued by the OFT indicates that, following entry into force of the modernisation regulation, "the OFT will adapt its current procedures to ensure that it applies Articles 81 and 82 in parallel with national competition law. When dealing with a suspected competition problem, the OFT will consider first both whether it might involve ...infringement of Article 81 and/or Article 82. For this reason it is likely to be rare that a reference to the CC will include agreements within the meaning of Article 81(1) except …[where the OFT has power to withdraw the benefit of a block exemption because]… both the following conditions are met:

  • The territory of the member State, or a part of it, has all the characteristics of a distinct geographic market; and
  • The agreements in question have effects incompatible with Article 81(3) in the territory of the Member State." (see paras 2.13 to 2.18 inclusive).

The recitals to the modernisation regulation note that "it is necessary to provide that the application of national competition laws to agreements, decisions or concerted practices within the meaning of Article 81(1) may not lead to the prohibition of such agreements, decisions and concerted practices if they are not also prohibited under Community competition law. The notions of agreement, decisions and concerted practices are autonomous concepts of Community competition law covering the co-ordination of behaviour of undertakings on the market as interpreted by the Community courts." (recital 8).

In future, it will therefore be necessary for parties and their legal advisers to consider, at an early stage, whether the features of the market which give rise to competition concerns could and should be addressed under Article 81 EC, rather than the market investigation provisions of the Enterprise Act.

Undertakings vs. market investigation

S 154 enables the OFT to accept undertakings in lieu of a reference in circumstances where the OFT would otherwise have the power to make a reference (see above) and the undertakings remedy/mitigate/prevent any adverse effect on competition/any detrimental effect on customers resulting from the adverse effect on competition.

Where undertakings are given, that has the effect of preventing the OFT (or the appropriate Minister) from making a reference to the CC on the same matters for a year (unless the undertakings are breached or the OFT has been supplied with false or misleading information in a material respect). As under the FTA, third party rights are respected as prior to the acceptance of undertakings, the OFT is required to publish details of the proposed undertakings inviting third parties to comment on them.

The OFT’s Guidance indicates that undertakings in lieu of a reference are not expected to be common, since the OFT will not generally have conducted a sufficiently detailed investigation of the competition problems in a market to enable it to determine what remedies are a suitable solution.

Proportionality

The OFT indicates that it will make a reference only where it has reasonable grounds to conclude that the adverse effects on competition resulting from the features of the market are significant. The OFT has not outlined the test which will determine significance in this regard but the following factors will be considered:

  • the size of the market, although the mere fact that a market is small will not rule out a reference;

  • the proportion of the market affected by the feature giving rise to adverse effects, although no absolute figures are provided to determine when the proportion will be large enough to justify a reference; and

  • whether the feature is a lasting characteristic of the market or whether it is of a more transient nature.

Availability of remedies

If the OFT considers that appropriate remedies will not be available to remedy adverse effects arising from features of the market, it will not make a reference. However, as noted above, it is likely to be rare that the OFT will have a sufficiently complete understanding of the market from its preliminary investigation to reach such a conclusion unless the OFT is familiar with the market and the particular features from a previous investigation so there may be limited cases which will not be referred for this reason.

Some cases may avoid a reference on this basis. They could include:

  • markets which have been found to be international in scope – such that remedies imposed in the UK are unlikely to have much impact; and/or

  • cases where the features which give rise to adverse effects are the result only of the applicable laws, regulations or government policies in place in the market. The OFT could recommend changes to such laws, regulations and policies without the need for a full reference.

What powers are available to the OFT in conducting its preliminary investigation?

The OFT has powers similar to those which were available to the DGFT under SS 44 and 46 of the FTA. If the OFT believes that it has the power to make a reference, then, in order to assist the OFT to determine whether a reference should be made or undertakings accepted in lieu of a reference, the OFT may:

  • Give notice to any person requiring him to attend a meeting to give evidence to the OFT (or its nominee);

  • Give notice to any person requiring him to produce any documents which are specified or described in the notice or fall within a category specified or described in the notice or are in that person’s custody or control; and/or

  • Give notice to any person requiring him to supply the OFT with estimates, forecasts, returns or other information specified/described in the notice.

The OFT may not compel anybody to give or produce evidence which he could not be compelled to produce in civil proceedings (section 174(8)). This rule is intended to permit the withholding of various privileged communications.

Intentional failure to comply with the requirements of a notice (without reasonable excuse) is an offence which is punishable by a fine and/or to imprisonment for up to 2 years (section 175(3)).

Similar powers are now also granted to the CC in respect of the conduct of their market investigation references. Previously, the CC had a power under S 85 of the FTA to require the attendance of witnesses and the production of documents and a power to fine witnesses only to the extent that the information provided was false or misleading (S 93B), the Enterprise Act empowers the CC to fine witnesses for non-compliance with a request that he/she supply evidence or documents (S 176).

What will the market investigation cover?

Any market investigation reference is required to specify:

  • The enactment under which it is made;

  • The date on which it is made; and

  • The description of goods or services to which the feature or combination of features concerned relates (S 133).

The reference is not required to specify the feature or features which give rise to the reference itself. 

The reference may also be framed so as to confine the CC’s investigation into only particular parts of the market which have given rise to the reference: for example, the reference may limit the CC’s investigation into particular modes of supply of relevant goods or services, or the particular place of supply/acquisition or by reference to the persons from whom or to whom they are supplied.

The OFT (or the referring Minister or sectoral regulator) may subsequently vary the content of the reference. The OFT’s Guidance notes that the CC may, whilst pursuing the investigation, discover that the description of the goods or services in the reference requires modification, e.g. where goods or services not specified in the reference but related to the reference goods or services are affected by the same features and merit investigation. In these circumstances the CC would approach the OFT and request a variation to the reference, to which the OFT would be expected to accede. Alternatively the OFT or the Minister may be alerted to a deficiency in the original reference and believe that a variation is justified. In these circumstances, the OFT, or the Minister, as appropriate, would be required to consult with the CC prior to making the variation (S 135).

Finally, the Enterprise Act reserves a power for the Secretary of State to intervene in a market investigation (either at the stage when the market is being considered by the OFT or following a reference to the CC) where the market raises a "public interest consideration". At present, the only matter specified as being a public interest consideration are the interests of national security (S 153). In practice, the cases of Government intervention are likely to be rate.

What questions will be addressed by the CC in its report?

The CC is required to take the following decisions:

  1. whether there is an adverse effect on competition, which is presumed pursuant to S134(2) where any feature or combination of features, of the relevant market(s) prevents, restricts or distorts competition in connection with the supply or acquisition of goods/services in the UK (or part of the UK); and
  2. if there is an adverse effect on competition,
    • - whether the CC itself should take action to remedy, mitigate or prevent the adverse effects on competition or any detrimental effect on customers resulting from the adverse effects, or

      - whether the CC should recommend that another party take action to remedy, mitigate or prevent the adverse effects on competition or any detrimental effect on customers resulting from the adverse effects, and 

      - in either case, if action should be taken, what the action should be and what is to be remedied, mitigated or prevented (S 134(4)).

For these purposes, the Act specifies that there will be a "detrimental effect on customers" if a market is characterised by higher prices, lower quality or less choice of goods/services or less innovation. It is not clear how this will be measured and whether the comparison will be with some hypothetical perfectly competitive market, or some other "norm".

The CC is also required by the Act to have regard to the need to achieve as  comprehensive a solution as reasonably practicable to the adverse effects identified and also to take account of any impact on relevant customer benefits of proposed action (where customer benefits are the opposite of the detrimental effects identified above).

The CC’s investigation and report is required to be undertaken and published within two years of the date of the reference (S 137). The report is required to contain the following content:

  • the CC’s decisions on the questions identified in S 134 (i.e. listed at (i) and immediately above);

  • the CC’s reasons for the decisions; and

  • the background information which the CC considers appropriate to include (S 136).

 What happens after publication of the CC’s market investigation report?

If the CC’s report concludes that there is one or more adverse effect on competition, then the CC is under a duty to take action to remedy, mitigate or prevent the adverse effect/detrimental effect on customers in a manner consistent with the decisions set out in the report (S 138), but subject to an exception where material changes have taken place since publication.

To this end, the CC should consider whether interim undertakings are necessary as S 157 of the Enterprise Act grants the CC a new power, following publication of a report, to accept undertakings "for the purpose of preventing pre-emptive action" i.e. action which thwarts the CC’s ability to obtain final undertakings which remedy the adverse effects identified.

Unlike the position under the FTA, it is the CC rather than the Minister that has the responsibility (rather than the previous Ministerial discretion) either to accept undertakings from appropriate persons (following negotiation between the parties and the OFT as specified in S 163), or to make an order unilaterally imposing obligations on the persons identified in the order (where the content of the order is determined by the scope of Schedule 8 to the Act) (SS 159 and 161).

If undertakings are accepted by the CC, the undertakings take effect from the date of acceptance and continue to take effect until varied, superseded or released by the CC. The CC is under a duty to consider representations made in relation to the question of varying or releasing the undertakings.

Once the CC has accepted undertakings, or imposed an order, the OFT is charged with responsibility for monitoring compliance with the terms of the undertakings/order. The OFT is also under a duty, from time to time, to consider, amongst other matters, whether an undertaking is still appropriate and, if not, whether parties may be released from the undertaking or the content of the undertaking can be varied, superseded or revoked (S 162). The OFT is charged with advising the CC on its conclusions but it is the OFT rather than the CC that is required to take such further action as it considers appropriate in this regard (S 162(4)).

If the CC (or if appropriate, the Minister) discovers that the undertakings accepted by it are not being adhered to, or that the undertakings were accepted on the basis of false or misleading information, the CC (or Minister) may make an order under S 160, where the order may unilaterally impose on the parties an obligation of the sort identified in Schedule 8.

If there continues to be non-fulfilment of the undertakings accepted by the CC, or adherence to the order imposed by the CC, an enforcement order may be drawn up and directions may be made in the enforcement order requiring the recipient to comply with the order. Non-observance of these directions would give rise to:

  • action by any person who sustains loss or damage as a result of the breach of duty to comply with the order (S 167(4));

  • civil proceedings, at the instigation of the OFT, or the relevant authority, for an injunction or any other appropriate relief or remedy (SS 167(6) and (7)).

Concluding remarks

The changes to the procedure and powers of the competition authorities made in the Enterprise Act are intended to address the long-standing criticisms of the FTA regime on market investigations:

  • the changes are intended to remove the scope for political influence in the process by reducing/removing the ability of the Executive to participate/have the final say in the decision taken;

  • the grounds for an investigation, and the adverse effects which are identified and ultimately the subject of undertakings or an order, are pure competition grounds rather than the more expansive "public interest" test of the FTA (although there is separate provision for the Secretary of State to take steps to introduce specific public interests considerations into the CC’s investigation in some cases); and

  • the remedies adopted should be directed at addressing competition detriments. Accordingly the CC is under an obligation to ensure that the remedies adopted are comprehensive and practicable. It also has a discretion to consider whether the remedies will have any adverse effects on customer benefits which result from the same feature as are the subject of the remedy.

Although the Act sets a clear framework to achieve these objectives, it is too soon to determine whether the objectives will be achieved in practice.





By Genevieve Johnston

© Herbert Smith 2003

The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

For more information on this or other Herbert Smith publications, please email us.

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These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions