|
|
Offences in respect of breaches of rules of competition.
|
2.—(1) In this section—
|
|
| |
“agreement”, “decision” and “concerted practice” mean, respectively, an agreement, decision and concerted practice of a kind described in section 4 (1) of the Principal Act;
|
|
| |
“certificate” means a certificate under section 4 (4) of the Principal Act;
|
|
| |
“licence” means a licence under section 4 (2) of the Principal Act.
|
|
| |
(2) (a) An undertaking shall not—
|
|
| |
(i) enter into, or implement, an agreement, or
|
|
| |
(ii) make or implement a decision, or
|
|
| |
(iii) engage in a concerted practice.
|
|
| |
(b) An undertaking that contravenes this subsection shall be guilty of an offence.
|
|
| |
(c) In proceedings for an offence under this subsection, it shall be a good defence to prove that—
|
|
| |
(i) the defendant did not know, nor, in all the circumstances of the case, could the defendant be reasonably expected to have known, that the effect of the agreement, decision or concerted practice concerned would be the prevention, restriction or distortion of competition in trade alleged in the proceedings, or
|
|
| |
(ii) at all material times a licence or certificate was in force in respect of the agreement, decision or concerted practice concerned and, in the case of a licence—
|
|
| |
(I) the terms and conditions of the licence were at all material times being complied with by the defendant, or
|
|
| |
(II) subject to subsection (3) of this section, in case any terms or conditions of the licence were not being so complied with—
|
|
| |
(A) those terms or conditions are terms or conditions that had been amended, or inserted in the licence, under section 8 of the Principal Act,
|
|
| |
(B) the defendant was complying with the terms and conditions of the licence immediately before the making of such amendments or insertions, and
|
|
| |
(C) the defendant began to take, within 14 days after the date of publication, in accordance with the said section 8, of notice of the amendment or insertion of terms or conditions aforesaid, all reasonable steps for the purposes of complying with those terms or conditions and was proceeding with due expedition on the date on which the offence is alleged to have been committed with the completion of any step remaining for those purposes,
|
|
| |
or
|
|
| |
(iii) subject to subsections (3) and (4) of this section, in the case of an agreement, decision or concerted practice in respect of which a licence or certificate has been granted and such a licence has been revoked or suspended or, as the case may be, such a certificate has been revoked, the defendant began to take, within 14 days after—
|
|
| |
(I) in the case of the revocation of a licence or certificate, the date of publication, in accordance with section 8 of the Principal Act, of notice of such revocation, or
|
|
| |
(II) in the case of the suspension of a licence, the date of the order of the High Court or, as may be appropriate, the Supreme Court providing for such suspension,
|
|
| |
all reasonable steps for the purposes of ensuring that any arrangements that had been made and which were necessary for the implementation of the agreement or decision or, as the case may be, which constituted the concerted practice were discontinued and was proceeding with due expedition on the date on which the offence is alleged to have been committed with the completion of any step remaining for those purposes.
|
|
| |
(3) The defence provided for by subparagraph (ii) (II) or, as the case may be, subparagraph (iii) of subsection (2) (c) of this section shall not be available to a defendant if the date on which the offence concerned is alleged to have been committed is more than 2 months after the date of publication of the notice concerned referred to in subclause (C) of the said subparagraph (ii) (II) or, as the case may be, clause (I) of the said subparagraph (iii) or, where appropriate, the date of the order concerned referred to in clause (II) of the said subparagraph (iii).
|
|
| |
(4) The defence provided for by subsection (2) (c) (iii) of this section shall not be available to a defendant the doing of any act or the making of any omission by whom constituted the grounds for the revocation of the licence or certificate concerned.
|
|
| |
(5) (a) An undertaking that is a party to an agreement, decision or concerted practice in respect of which a licence is in force shall comply with the terms and conditions of the licence.
|
|
| |
(b) An undertaking that contravenes this subsection shall be guilty of an offence.
|
|
| |
(c) Subject to subsection (6) of this section, where, in proceedings for an offence under this subsection, the terms or conditions of the licence which it is alleged were not complied with are terms or conditions that had been amended, or inserted in the licence, under section 8 of the Principal Act, it shall be a good defence to prove that—
|
|
| |
(i) the defendant was complying with the terms and conditions of the licence immediately before the making of such amendments or insertions, and
|
|
| |
(ii) the defendant began to take within 14 days after the date of publication, in accordance with the said section 8, of notice of the amendment or insertion of terms or conditions aforesaid, all reasonable steps for the purposes of complying with those terms or conditions and was proceeding with due expedition on the date on which the offence is alleged to have
|
|
| |
been committed with the completion of any step remaining for those purposes.
|
|
| |
(6) The defence provided for by subsection (5) of this section shall not be available to a defendant if the date on which the offence concerned is alleged to have been committed is more than 2 months after the date of publication of the notice concerned referred to in paragraph (c) (ii) of that subsection.
|
|
| |
(7) (a) An undertaking that acts in a manner prohibited by section 5 (1) of the Principal Act or which contravenes an order under section 14 of that Act shall be guilty of an offence.
|
|
| |
(b) In proceedings for an offence under this subsection (being an offence which consists of the doing of an act in a manner prohibited by section 5 (1) of the Principal Act), it shall be a good defence to prove that—
|
|
| |
(i) the defendant did not know, nor, in all the circumstances of the case, could the defendant be reasonably expected to have known, that the act or acts concerned done by the defendant would constitute the abuse of the dominant position in trade for goods or services alleged in the proceedings, or
|
|
| |
(ii) the said act was done in compliance with the provisions of an order under section 14 of the said Act (“the first-mentioned order”), or
|
|
| |
(iii) subject to subsection (8) of this section, in case any of those provisions were not being complied with—
|
|
| |
(I) those provisions are provisions that had been amended, or inserted in the first-mentioned order, by another order under the said section 14 (“the second-mentioned order”),
|
|
| |
(II) the defendant was complying with the provisions of the first-mentioned order immediately before the commencement of the second-mentioned order, and
|
|
| |
(III) the defendant began to take, within 14 days after the commencement of the second-mentioned order, all reasonable steps for the purposes of complying with the provisions so amended or inserted and was proceeding with due expedition on the date on which the offence is alleged to have been committed with the completion of any step remaining for those purposes,
|
|
| |
or
|
|
| |
(iv) subject to subsection (8) of this section, in case an order under section 14 of the said Act prohibited the continuance of the act concerned except on conditions specified in that order and that order has been revoked by another order under the said section 14 (“the second-mentioned order”), the defendant began to take, within 14 days after the commencement of the second-mentioned order, all
|
|
| |
reasonable steps for the purposes of discontinuing the act concerned and was proceeding with due expedition on the date on which the offence is alleged to have been committed with the completion of any step remaining for those purposes.
|
|
| |
(c) Subject to subsection (8) of this section, where, in proceedings for an offence under this subsection (being an offence which consists of the contravention of an order under section 14 of the Principal Act (“the first-mentioned order”)), the provisions of that order which it is alleged were not complied with are provisions that had been amended, or inserted in that order, by another order under the said section 14 (“the second-mentioned order”), it shall be a good defence to prove that—
|
|
| |
(i) the defendant was complying with the provisions of the first-mentioned order immediately before the commencement of the second-mentioned order, and
|
|
| |
(ii) the defendant began to take, within 14 days after the commencement of the second-mentioned order, all reasonable steps for the purposes of complying with the provisions so amended or inserted and was proceeding with due expedition on the date on which the offence is alleged to have been committed with the completion of any step remaining for those purposes.
|
|
| |
(8) The defence provided for by subparagraph (iii) or (iv) of paragraph (b), or, as the case may be, by paragraph (c), of subsection (7) of this section shall not be available to a defendant if the date on which the offence concerned is alleged to have been committed is more than 2 months after the commencement of the order concerned secondly referred to in the said subparagraph (iii) or (iv) or the said paragraph (c), as the case may be.
|
|
| |
(9) For the purpose of determining liability for an offence under this section, any act done by an officer or an employee of an undertaking for the purposes of, or in connection with, the business or affairs of the undertaking shall be regarded as an act done by the undertaking.
|
|
| |
(10) References in this section to an order under section 14 of the Principal Act shall, where the context admits, be construed as including references to an order under subsection (2) of section 12 (as adapted by the Principal Act) of the Act of 1978.
|
