1 Title and commencement

This Order may be cited as the Enterprise Act 2002 (Enforcement Undertakings and Orders) Order 2004 and shall come into force on 4th October 2004.

NOTES
Initial Commencement
Specified date

Specified date: 4 October 2004: see above.

2 Interpretation

2Interpretation

In this Order—

“the Act” means the Enterprise Act 2002;

“the 1973 Act” means the Fair Trading Act 1973;

“the Commission” means the Competition Commission;

“the DTI” means the Department of Trade and Industry;

“the MMC” means the Monopolies and Mergers Commission;

“the specified undertakings” means the undertakings described in Schedule 1 hereto; and

“the specified orders” means the orders described in Schedule 2 hereto.

NOTES
Initial Commencement
Specified date

Specified date: 4 October 2004: see art 1.

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3 Specification

3Specification

(1)    The undertakings described in Schedule 1 hereto are hereby specified for the purposes of paragraphs 15(1), 15(3)(a) and 16(1) of Schedule 24 to the Act.

(2)    The orders described in Schedule 2 hereto are hereby specified for the purposes of paragraphs 15(2), 15(3)(b) and 17(1) of Schedule 24 to the Act.

NOTES
Initial Commencement
Specified date

Specified date: 4 October 2004: see art 1.

Signature

Gerry Sutcliffe,

Parliamentary Under-Secretary of State for Employment Relations, Competition and Consumers,

Department of Trade and Industry

20th August 2004

SCHEDULE 1

SCHEDULE 2

SCHEDULE 2 Article 3

The following orders have been made by a Minister of the Crown under section 56 of the 1973 Act and are specified orders for the purposes of Article 3(2) of this Order:

The Foreign Package Holidays (Tour Operators and Travel Agents) Order 2001

The Foreign Package Holidays (Tour Operators and Travel Agents) Order 2000

The Supply of New Cars Order 2000

The Restriction on Agreements and Conduct (Specified Domestic Electrical Goods) Order 1998

The Films (Exhibition Periods) Order 1996

The Electrical Contracting (London Exhibition Halls) Order 1995

The Credit Cards (Price Discrimination) Order 1990

The Credit Cards (Merchant Acquisition) Order 1990

The Restriction on Agreements and Conduct (Tour Operators) Order 1987

NOTES
Initial Commencement
Specified date

Specified date: 4 October 2004: see art 1.

EXPLANATORY NOTE

EXPLANATORY NOTE (This note is not part of the Order)

This Order provides for the transfer of enforcement rights by civil proceedings of certain undertakings given to a Minister of the Crown in relation to merger and monopoly situations under section 88 of the Fair Trading Act 1973 (c 41) (“the 1973 Act”) and of certain orders in relation to monopoly situations made by a Minister of the Crown under section 56 of the 1973 Act from any person (which would include the Secretary of State) to the Office of Fair Trading (“OFT”) and the Competition Commission (“the Commission”). It also provides for the rights of third parties who have suffered loss or damage caused by contravention of any such undertaking or order. It further provides for the transfer of the power to supersede, vary or release any such undertaking from the Minister concerned to the Commission; and for the transfer of the power to vary or revoke any such order from the Minister concerned to the Commission.

Article 3(1) provides that the undertakings described in Schedule 1 to this Order are specified for the purpose of paragraphs 15(1), 15(3)(a) and 16(1) of Schedule 24 to the Enterprise Act 2002 (c 40) (“the Act”). The said paragraphs provide the Secretary of State with order making powers in respect of undertakings that have been given to a Minister of the Crown under section 88 of the 1973 Act. Article 3(2) provides that the orders described in Schedule 2 to this Order are specified for the purpose of paragraphs 15(2), 15(3)(b) and 17(1) of Schedule 24 to the Act. The said paragraphs provide the Secretary of State with order making powers in respect of orders that have been made by a Minister of the Crown under section 56 of the 1973 Act.

The effect of specifying undertakings and orders under paragraph 15(1) and (2) of Schedule 24 to the Act is to apply section 94(1) to (6) of that Act in relation to such undertakings and orders. Section 94(1) to (5) of the Act provides for the rights of third parties who have suffered loss or damage caused by the contravention of any specified undertaking or order; and section 94(6) of that Act provides the OFT with a power to enforce any specified undertaking or order by bringing civil proceedings. The effect of specifying undertakings and orders under paragraph 15(3)(a) and 15(3)(b) of Schedule 24 to the Act is to provide the Commission with equivalent enforcement rights to those of the OFT in relation to any such undertaking or order. Paragraph 15(5) of Schedule 24 to the Act provides in particular that sections 93 and 93A of the 1973 Act will cease to apply in relation to specified undertakings and orders. Sections 93 and 93A of that Act provide for any person to enforce undertakings by bringing civil proceedings.

The effect of specifying undertakings under paragraph 16(1) of Schedule 24 to the Act is to provide the Commission with a power to supersede, vary or release any such undertaking. Paragraph 16(5) of the said schedule provides that where the Commission is given a power by an order made under paragraph 16(1) of that schedule to supersede, vary or release an undertaking accepted by a Minister of the Crown under section 88 of the 1973 Act, the Minister concerned shall accordingly cease to have power under that Act to supersede, vary or release that undertaking.

The effect of specifying orders under paragraph 17(1) of Schedule 24 to the Act is to provide the Commission with a power to vary or revoke any such order. Paragraph 17(5) of the said schedule provides that where the Commission has the power by virtue of an order made under paragraph 17(1) of that schedule to vary or revoke an order made by the Minister of the Crown under section 56 of the 1973 Act, the Minister concerned shall accordingly cease to have the power to do so under that Act.

Copies of the merger undertakings and press notices referred to in Part I of Schedule 1 to this Order may be obtained from Ian Lomas, Consumer and Competition Policy Directorate, DTI (telephone: 020 7215 5009; facsimile: 020 7215 6565; e-mail: ian.lomas@dti.gov.uk). Copies of the monopoly undertakings, orders and press notices referred to in Part II of Schedule 1 and Schedule 2 to this Order may be obtained from Marie Cawley, Consumer and Competition Policy Directorate, DTI (telephone: 020 7215 6771; facsimile: 020 7215 6565; e-mail: marie.cawley@dti.gov.uk).

A full regulatory impact assessment has not been produced for this instrument as it has no impact on the costs of business.

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