Joint Committee on Statutory Instruments Thirteenth Report



APPENDIX 3

Memorandum by the Department of Trade and Industry

COMPETITION COMMISSION (DIRECTOR'S RULES) ORDER 2000

  1. The Department of Trade and Industry submits this memorandum in response to the requests dated 1st March 2000 on the following points.

    Explain which date will be the notification date referred to in rule 5(1) in a case where Form N is received by the Director on one day and the fee is paid (as defined) in rule 6(7) by reference to its inter-bank transfer) on another day.

The Director General of Fair Trading advises as follows:

  2. The date of notification will be the date upon which Form N is received and any fee payable has been paid. Where Form N is received by the Director on one day and the fee is paid (as defined in rule 6(7) on the day on which the correct amount of the fee has been transferred to the bank account of the Office of Fair Trading) on another day the date of notification will be the later of the two. For example, if Form N is received by the Office of Fair Trading and the fee is not paid for a further seven days the date of notification will be the date that the fee is paid.

    As regards the period allowed under rule 13 to an occupier of premises being searched to get his legal adviser, is the intention of the words "a reasonable time" means such period of time as the [investigating] officer consider is reasonable in the circumstances" to exclude any review by a court of the legitimacy of the officer's opinion.

The Director General of Fair Trading advises as follows:

  3. These words are intended to make it clear that the investigating officer will determine what he considers to be a "reasonable time" in the context of the particular investigation being carried out. It is not the intention of this wording to exclude review by the court of the officer's opinion of what constitutes a "reasonable time" if, for example, the officer has acted irrationally.

    Rules 14(6)(b) and 18(2)(b) authorise the Director to withhold from inspection any document which is in the opinion of the Director "confidential" otherwise than within the definition in rule 30 (repeating section 56(3) of the Act). Explain what other grounds of confidentiality are contemplated than those repeating section 56(3) of the Act.

The Director General of Fair Trading advises as follows:

  4. Paragraph 6 of rule 14 and paragraph (2) of rule 18 set out two categories of documents that the Director may withhold when giving access to his file.

    (a)  For a document to fall within paragraph 14(6)(a) or 18(2)(a) a person must have claimed that the document contains information which is confidential as defined by rule 30(1)(c). A document will only be withheld if the Director agrees with that person's claim that it contains information that is confidential as defined by Rule 30(1)(c).

    (b)  Rules 14(6)(b) and 18(2)(b) provide that the Director may also withhold a document which, in his opinion, "is otherwise confidential". It is intended that "otherwise confidential" covers:

      (i)    documents that the Director considers contain information that is confidential within the definition in rule 30(1)(c) where a person has not stated that it contains information that is confidential; and

      (ii)  documents that the Director considers are confidential otherwise than within the definition in rule 30(1)(c).

  5. Other grounds for confidentiality that are contemplated that are outside the definition in rule 30(1)(c) may include, for example:

    (a)  documents containing information making it possible to identify the suppliers of the information who wish to remain anonymous to other parties; and

    (b)  information that is communicated to the Director on condition that its confidentiality is observed (for example, information that has been obtained during an investigation that is the subject of a non-disclosure request such as a study commissioned by the firm and forming part of its property).

6th March 2000


 
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