Amendments proposed to the Enterprise Bill, As Amended - continued House of Commons

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Ms Secretary Hewitt

384

Page     308,     line     44     [Schedule     25],     at end insert—

      'Patents Act 1977 (c. 37)

    6A (1) The Patents Act 1977 is amended as follows.

    (2) After section 50 there is inserted—

          "50A Powers exercisable following merger and market investigations    (1)   Subsection (2) below applies where—

      (a) section 40(2), 54(2), 65(6), 72(2), 80(2), 132(2), 141(2) or 154(2) of, or paragraph 5(2) or 10(2) of Schedule 7 to, the Enterprise Act 2002 (powers to take remedial action following merger or market investigations) applies;

(b) the Competition Commission or (as the case may be) the Secretary of State considers that it would be appropriate to make an application under this section for the purpose of remedying, mitigating or preventing a matter which cannot be dealt with under the enactment concerned; and

(c) the matter concerned involves—

(i) conditions in licences granted under a patent by its proprietor restricting the use of the invention by the licensee or the right of the proprietor to grant other licences; or

(ii) a refusal by the proprietor of a patent to grant licences on reasonable terms.

    (2)   The Competition Commission or (as the case may be) the Secretary of State may apply to the comptroller to take action under this section.

    (3)   Before making an application the Competition Commission or (as the case may be) the Secretary of State shall publish, in such manner as it or he thinks appropriate, a notice describing the nature of the proposed application and shall consider any representations which may be made within 30 days of such publication by persons whose interests appear to it or him to be affected.

    (4)   The comptroller may, if it appears to him on an application under this section that the application is made in accordance with this section, by order cancel or modify any condition concerned of the kind mentioned in subsection (1)(c)(i) above or may, instead or in addition, make an entry in the register to the effect that licences under the patent are to be available as of right.

    (5)   References in section 34, 35, 46, 62, 128 or 135 of the Enterprise Act 2002 (questions to be decided by the Competition Commission in its reports) to taking action under section 40(2), 54, 65, 132 or 141 shall include references to taking action under subsection (2) above.

    (6)   Action taken by virtue of subsection (4) above in consequence of an application under subsection (2) above where an enactment mentioned in subsection (1)(a) above applies shall be treated, for the purposes of sections 88(3), 89(1)(a), 156(1) and 160(3) of the Enterprise Act 2002 (duties to register and keep under review enforcement orders etc.), as if it were the making of an enforcement order (within the meaning of the Part concerned) under the relevant power in Part 3 or (as the case may be) 4 of that Act."

    (3) In section 51(1) (powers exercisable in consequence of report of Competition Commission), paragraphs (a) and (b) shall cease to have effect.

    (4) In section 53(2) (statements in certain reports of the Competition Commission to be prima facie evidence of the matters stated) after "1980" there is inserted "or published under Part 3 or 4 of the Enterprise Act 2002".'.


   

Ms Secretary Hewitt

385

Page     314,     line     6     [Schedule     25],     leave out ', (4) and (5)' and insert 'and (4)'.

   

Ms Secretary Hewitt

386

Page     314,     line     6     [Schedule     25],     at end insert—

            '(b)   in subsection (4), for the words "against the public interest" there is substituted "inappropriate";

            (c)   for subsection (5) there is substituted—

          "(5)   In deciding what is inappropriate for the purposes of subsection (4) the Secretary of State shall have regard to the considerations mentioned in section 238 of the Enterprise Act 2002."'.

   

Ms Secretary Hewitt

189

Page     314,     line     16     [Schedule     25],     after '(6)', insert 'or 111(3)(b) or (4)(b)'.

   

Ms Secretary Hewitt

190

Page     314,     line     17     [Schedule     25],     after '11B(1)(c)', insert 'or (f)'.

   

Ms Secretary Hewitt

387

Page     314,     line     38     [Schedule     25],     at end insert—

    '(10) For the purposes of the Scotland Act 1998 (c.46) the amendments made by this paragraph shall be taken to be pre-commencement enactments within the meaning of that Act.'.

   

Ms Secretary Hewitt

388

Page     314,     line     42     [Schedule     25],     at end insert—

      'Agricultural Marketing (Northern Ireland) Order 1982 (S.I. 1982/1080 (N.I. 12))

    9A (1) The Agricultural Marketing (Northern Ireland) Order 1982 is amended as follows.

    (2) For article 23 (action following report by Commission) there is substituted—

          "23Action following report by Competition Commission    (1)   Paragraph (5) applies in any of the following cases.

          (2)   The first case is where section 132(2) of the Enterprise Act 2002 (duty to remedy adverse effects following market investigation reference) applies and whatever is to be remedied, mitigated or prevented relates to any provision of a scheme or any act or omission of a board administering a scheme.

          (3)   The second case is where section 141(2) of the Enterprise Act 2002 (duty to remedy adverse effects in public interest cases) applies and whatever is to be remedied, mitigated or prevented relates to any provision of a scheme or any act or omission of a board administering a scheme.

          (4)   The third case is where—

      (a) a report of the Competition Commission under section 11 of the Competition Act 1980 (c.21) (references of public bodies etc.), as laid before Parliament, contains conclusions to the effect that—

(i) certain matters indicated in the report operate against the public interest, and

(ii) those matters consist of or include any provision of a scheme or any act or omission of a board administering a scheme, and

(b) none of the conclusions is to be disregarded by virtue of section 11C(3) of that Act (requirement for two-thirds majority).

    (5)   The Department shall have the like power to make orders under Article 22 as if a report of a committee of investigation had contained the conclusion that the provision of the scheme in question, or the act or omission in question, is contrary to the interests of consumers of the regulated product.

    (6)   An order made by virtue of this Article in a case falling within paragraph (2) or (3) shall be treated, for the purposes of sections 156(1) and 160(3) of the Enterprise Act 2002 (duties to register and keep under review enforcement orders etc.), as if it were made under the relevant power in Part 4 of that Act to make an enforcement order (within the meaning of that Part)."

    (3) In article 42 (action following report by Commission)—

            (a)   for paragraph (1) there is substituted—

          "(1)   Paragraph (1D) applies in any of the following cases.

          (1A)   The first case is where section 132(2) of the Enterprise Act 2002 (duty to remedy adverse effects following market investigation reference) applies and whatever is to be remedied, mitigated or prevented relates to any provision of a scheme or any act or omission of a board administering a scheme.

          (1B)   The second case is where section 141(2) of the Enterprise Act 2002 (duty to remedy adverse effects in public interest cases) applies and whatever is to be remedied, mitigated or prevented relates to any provision of a scheme or any act or omission of a board administering a scheme.

          (1C)   The third case is where—

      (a) a report of the Competition Commission under section 11 of the Competition Act 1980 (c.21) (references of public bodies etc.), as laid before Parliament, contains conclusions to the effect that—

(i) certain matters indicated in the report operate against the public interest, and

(ii) those matters consist of or include any provision of a scheme or any act or omission of a board administering a scheme, and

(b) none of the conclusions is to be disregarded by virtue of section 11C(3) of that Act (requirement for two-thirds majority).

    (1D)   The Department, if it thinks fit so to do—

(a) may by order make such amendments in the scheme as it considers necessary or expedient for the purpose of rectifying the matter;

(b) may by order revoke the scheme;

(c) in the event of the matter being one which it is within the power of the board to rectify, may by order direct the board to take such steps to rectify the matter as may be specified in the order, and thereupon it shall be the duty of the board forthwith to comply with the order.";

            (b)   in paragraph (2) for "paragraph (1)" there is substituted "paragraph (1D)";

            (c)   in paragraph (3) for "paragraph (1)(b)(iii)" there is substituted "paragraph (1D)(c)";

            (d)   in paragraph (5)—

        (i) for "paragraph (1)(i) or (iii)" there is substituted "paragraph (1D)(a) or (c)";

        (ii) for "paragraph (1)(ii)" there is substituted "paragraph (1D)(b)";

            (e)   after paragraph (5) there is inserted—

          "(5A)    Any order made under this Article in a case falling within paragraph (1A) or (1B) shall be treated, for the purposes of sections 156(1) and 160(3) of the Enterprise Act 2002 (duties to register and keep under review enforcement orders etc.), as if it were made under the relevant power in Part 4 of that Act to make an enforcement order (within the meaning of that Part)."'.

 
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