(1) An appeal lies to the appropriate court—
(a) from a decision of the Tribunal as to the amount of a penalty under section 36; and
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) on a point of law arising from any other decision of the Tribunal on an appeal under section 46 or 47.
(1A) An appeal lies to the appropriate court on a point of law arising from a decision of the Tribunal in proceedings under section 47A or in collective proceedings—
(a) as to the award of damages or other sum (other than a decision on costs or expenses), ...
(b) as to the grant of an injunction , or
(c) as to the grant of a declaration or a declarator.
(1B) An appeal lies to the appropriate court from a decision of the Tribunal in proceedings under section 47A or in collective proceedings as to the amount of an award of damages or other sum (other than the amount of costs or expenses).
(1C) An appeal under subsection (1A) arising from a decision in respect of a stand-alone claim may include consideration of a point of law arising from a finding of the Tribunal as to an infringement of a prohibition listed in section 47A(2).
(1D) In subsection (1C) “a stand-alone claim” is a claim—
(a) in respect of an alleged infringement of a prohibition listed in section 47A(2), and
(b) made in proceedings under section 47A or included in collective proceedings.
(2) An appeal under this section—
(a) except as provided by subsection (2A), may be brought by a party to the proceedings before the Tribunal or by a person who has a sufficient interest in the matter; and
(b) requires the permission of the Tribunal or the appropriate court.
(2A) An appeal from a decision of the Tribunal in respect of a claim included in collective proceedings may be brought only by the representative in those proceedings or by a defendant to that claim.
(3) In this section “the appropriate court” means the Court of Appeal or, in the case of an appeal from Tribunal proceedings in Scotland, the Court of Session.
49A Collective settlements: where a collective proceedings order has been made
(1) The Tribunal may, in accordance with this section and Tribunal rules, make an order approving the settlement of claims in collective proceedings (a “collective settlement”) where—
(a) a collective proceedings order has been made in respect of the claims, and
(b) the Tribunal has specified that the proceedings are opt-out collective proceedings.
(2) An application for approval of a proposed collective settlement must be made to the Tribunal by the representative and the defendant in the collective proceedings.
(3) The representative and the defendant must provide agreed details of the claims to be settled by the proposed collective settlement and the proposed terms of that settlement.
(4) Where there is more than one defendant in the collective proceedings, “defendant” in subsections (2) and (3) means such of the defendants as wish to be bound by the proposed collective settlement.
(5) The Tribunal may make an order approving a proposed collective settlement only if satisfied that its terms are just and reasonable.
(6) On the date on which the Tribunal approves a collective settlement—
(a) if the period within which persons may opt out of or (in the case of persons not domiciled in the United Kingdom) opt in to the collective proceedings has expired, subsections (8) and (10) apply so as to determine the persons bound by the settlement;
(b) if that period has not yet expired, subsections (9) and (10) apply so as to determine the persons bound by the settlement.
(7) If the period within which persons may opt out of the collective proceedings expires on a different date from the period within which persons not domiciled in the United Kingdom may opt in to the collective proceedings, the references in subsection (6) to the expiry of a period are to the expiry of whichever of those periods expires later.
(8) Where this subsection applies, a collective settlement approved by the Tribunal is binding on all persons falling within the class of persons described in the collective proceedings order who—
(a) were domiciled in the United Kingdom at the time specified for the purposes of determining domicile in relation to the collective proceedings (see section 47B(11)(b)(i)) and did not opt out of those proceedings, or
(b) opted in to the collective proceedings.
(9) Where this subsection applies, a collective settlement approved by the Tribunal is binding on all persons falling within the class of persons described in the collective proceedings order.
(10) But a collective settlement is not binding on a person who—
(a) opts out by notifying the representative, in a manner and by a time specified, that the claim should not be included in the collective settlement, or
(b) is not domiciled in the United Kingdom at a time specified, and does not, in a manner and by a time specified, opt in by notifying the representative that the claim should be included in the collective settlement.
(11) This section does not affect a person's right to offer to settle opt-in collective proceedings.
(12) In this section and in section 49B, “specified” means specified in a direction made by the Tribunal.
49B Collective settlements: where a collective proceedings order has not been made
(1) The Tribunal may, in accordance with this section and Tribunal rules, make an order approving the settlement of claims (a “collective settlement”) where—
(a) a collective proceedings order has not been made in respect of the claims, but
(b) if collective proceedings were brought, the claims could be made at the commencement of the proceedings (disregarding any limitation or prescriptive period applicable to a claim in collective proceedings).
(2) An application for approval of a proposed collective settlement must be made to the Tribunal by—
(a) a person who proposes to be the settlement representative in relation to the collective settlement, and
(b) the person who, if collective proceedings were brought in respect of the claims, would be a defendant in those proceedings (or, where more than one person would be a defendant in those proceedings, such of those persons as wish to be bound by the proposed collective settlement).
(3) The persons applying to the Tribunal under subsection (2) must provide agreed details of the claims to be settled by the proposed collective settlement and the proposed terms of that settlement.
(4) The Tribunal may make an order approving a proposed collective settlement (see subsection (8)) only if it first makes a collective settlement order.
(5) The Tribunal may make a collective settlement order only—
(a) if it considers that the person described in subsection (2)(a) is a person who, if the order were made, the Tribunal could authorise to act as the settlement representative in relation to the collective settlement in accordance with subsection (7), and
(b) in respect of claims which, if collective proceedings were brought, would be eligible for inclusion in the proceedings (see section 47B(6)).
(6) A collective settlement order must include the following matters—
(a) authorisation of the person described in subsection (2)(a) to act as the settlement representative in relation to the collective settlement, and
(b) description of a class of persons whose claims fall within subsection (5)(b).
(7) The Tribunal may authorise a person to act as the settlement representative in relation to a collective settlement—
(a) whether or not that person is a person falling within the class of persons described in the collective settlement order for that settlement, but
(b) only if the Tribunal considers that it is just and reasonable for that person to act as the settlement representative in relation to that settlement.
(8) Where the Tribunal has made a collective settlement order, it may make an order approving a proposed collective settlement only if satisfied that its terms are just and reasonable.
(9) A collective settlement approved by the Tribunal is binding on all persons falling within the class of persons described in the collective settlement order.
(10) But a collective settlement is not binding on a person who—
(a) opts out by notifying the settlement representative, in a manner and by a time specified, that the claim should not be included in the collective settlement, or
(b) is not domiciled in the United Kingdom at a time specified, and does not, in a manner and by a time specified, opt in by notifying the settlement representative that the claim should be included in the collective settlement.
(11) In this section, “settlement representative” means a person who is authorised by a collective settlement order to act in relation to a collective settlement.
(1) A person may apply to the CMA for approval of a redress scheme.
(2) The CMA may consider an application before the infringement decision to which the redress scheme relates has been made, but may approve the scheme only—
(a) after that decision has been made, or
(b) in the case of a decision of the CMA, at the same time as that decision is made.
(3) In deciding whether to approve a redress scheme, the CMA may take into account the amount or value of compensation offered under the scheme.
(4) The CMA may approve a redress scheme under subsection (2)(b) subject to a condition or conditions requiring the provision of further information about the operation of the scheme (including about the amount or value of compensation to be offered under the scheme or how this will be determined).
(5) If the CMA approves a redress scheme subject to such a condition, it may—
(a) approve the scheme subject to other conditions;
(b) withdraw approval from the scheme if any conditions imposed under subsection (4) or paragraph (a) are not met;
(c) approve a redress scheme as a replacement for the original scheme (but may not approve that scheme subject to conditions).
(6) An approved scheme may not be varied by the CMA or the compensating party.
(7) But, where the CMA approves a redress scheme subject to a condition of the kind mentioned in subsection (4), subsection (6) does not prevent further information provided in accordance with the condition from forming part of the terms of the scheme.
(8) The Secretary of State may make regulations relating to the approval of redress schemes, and the regulations may in particular—
(a) make provision as to the procedure governing an application for approval of a redress scheme, including the information to be provided with the application;
(b) provide that the CMA may approve a redress scheme only if it has been devised according to a process specified in the regulations;
(c) provide that the CMA may approve a redress scheme only if it is in a form, or contains terms, specified in the regulations (which may include terms requiring a settlement agreement under the scheme to be in a form, or contain terms, specified in the regulations);
(d) provide that the CMA may approve a redress scheme only if (so far as the CMA can judge from facts known to it) the scheme is intended to be administered in a manner specified in the regulations;
(e) describe factors which the CMA may or must take into account, or may not take into account, in deciding whether to approve a redress scheme.
(9) The CMA must publish guidance with regard to—
(a) applications for approval of redress schemes,
(b) the approval of redress schemes, and
(c) the enforcement of approved schemes, and in particular as to the criteria which the CMA intends to adopt in deciding whether to bring proceedings under section 49E(4).
(10) Guidance under subsection (9) must be approved by the Secretary of State before it is published.
(11) In this section and sections 49D and 49E—
“approved scheme” means a redress scheme approved by the CMA,
“compensating party” means a person offering compensation under an approved scheme,
“infringement decision” means a decision of the CMA that the Chapter I prohibition or the Chapter II prohibition has been infringed, and
“redress scheme” means a scheme under which a person offers compensation in consequence of an infringement decision made in respect of that person.
(12) For the purposes of this section and section 49E, “compensation”—
(a) may be monetary or non-monetary, and
(b) may be offered to persons who have not suffered a loss as a result of the infringement decision to which the redress scheme relates.
(1) The CMA may require a person making an application for approval of a redress scheme to pay some or all of the CMA's reasonable costs relating to the application.
(2) A requirement to pay costs is imposed by giving that person written notice specifying—
(a) the amount to be paid,
(b) how that amount has been calculated, and
(c) by when that amount must be paid.
(3) A person required to pay costs under this section may appeal to the Tribunal against the amount.
(4) Where costs required to be paid under this section relate to an approved scheme, the CMA may withdraw approval from that scheme if the costs have not been paid by the date specified in accordance with subsection (2)(c).
(5) Costs required to be paid under this section are recoverable by the CMA as a debt.
(1) A compensating party is under a duty to comply with the terms of an approved scheme (“the duty”).
(2) The duty is owed to any person entitled to compensation under the terms of the approved scheme.
(3) Where such a person suffers loss or damage as a result of a breach of the duty, the person may bring civil proceedings before the court for damages, an injunction or interdict or any other appropriate relief or remedy.
(4) Where the CMA considers that the compensating party is in breach of the duty, the CMA may bring civil proceedings before the court for an injunction or interdict or any other appropriate relief or remedy.
(5) Subsection (4) is without prejudice to any right that a person has to bring proceedings under subsection (3).
(6) In any proceedings brought under subsection (3) or (4), it is a defence for the compensating party to show that it took all reasonable steps to comply with the duty.
(7) Where the CMA considers that it is no longer appropriate for the compensating party to be subject to the duty, the CMA may give notice in writing to that party stating that it is released from the duty.
(8) Where a person has entered into a settlement agreement with the compensating party, that agreement remains enforceable notwithstanding the release of the compensating party under subsection (7) from the duty.
(9) In this section “the court” means—
(a) in England and Wales, the High Court or the county court,
(b) in Northern Ireland, the High Court or a county court,
(c) in Scotland, the Court of Session or the sheriff.
(1) The Secretary of State may by order provide for any provision of this Part to apply in relation to—
(a) vertical agreements, or
(b) land agreements,
with such modifications as may be prescribed.
(2) An order may, in particular, provide for exclusions or exemptions, or otherwise provide for prescribed provisions not to apply, in relation to—
(a) vertical agreements, or land agreements, in general; or
(b) vertical agreements, or land agreements, of any prescribed description.
(3) An order may empower the CMA to give directions to the effect that in prescribed circumstances an exclusion, exemption or modification is not to apply (or is to apply in a particular way) in relation to an individual agreement.
(4) Subsections (2) and (3) are not to be read as limiting the powers conferred by section 71.
(5) In this section—
“land agreement” and “vertical agreement” have such meaning as may be prescribed; and
“prescribed” means prescribed by an order.
(1) The CMA may make such rules about procedural and other matters in connection with the carrying into effect of the provisions of this Part as it considers appropriate.
(2) Schedule 9 makes further provision about rules made under this section but is not to be taken as restricting the CMA powers under this section.
(3) If the CMA is preparing rules under this section it must consult such persons as he considers appropriate.
(4) If the proposed rules relate to a matter in respect of which a regulator exercises concurrent jurisdiction, those consulted must include that regulator.
(5) No rule made by the CMA is to come into operation until it has been approved by an order made by the Secretary of State.
(6) The Secretary of State may approve any rule made by the CMA —
(a) in the form in which it is submitted; or
(b) subject to such modifications as he considers appropriate.
(7) If the Secretary of State proposes to approve a rule subject to modifications he must inform the CMA of the proposed modifications and take into account any comments made by the CMA .
(8) Subsections (5) to (7) apply also to any alteration of the rules made by the CMA .
(9) The Secretary of State may, after consulting the CMA , by order vary or revoke any rules made under this section.
(10) If the Secretary of State considers that rules should be made under this section with respect to a particular matter he may direct the CMA to exercise its powers under this section and make rules about that matter.
(1) The CMA must prepare and publish general advice and information about—
(a) the application of the Chapter I prohibition and the Chapter II prohibition, and
(b) the enforcement of those prohibitions.
(1A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) The CMA may at any time publish revised, or new, advice or information.
(3) Advice and information published under this section must be prepared with a view to—
(a) explaining provisions of this Part to persons who are likely to be affected by them; and
(b) indicating how the CMA expects such provisions to operate.
(4) Advice (or information) published by virtue of subsection (3)(b) may include advice (or information) about the factors which the CMA may take into account in considering whether, and if so how, to exercise a power conferred on it by Chapter I, II or III.
(5) Any advice or information published by the CMA under this section is to be published in such form and in such manner as it considers appropriate.
(6) If the CMA is preparing any advice or information under this section it must consult such persons as he considers appropriate.
(7) If the proposed advice or information relates to a matter in respect of which a regulator exercises concurrent jurisdiction, those consulted must include that regulator.
(8) In preparing any advice or information under this section about a matter in respect of which he may exercise functions under this Part, a regulator must consult—
(a) the CMA ;
(b) the other regulators; and
(c) such other persons as he considers appropriate.
(1) The OFT may charge fees, of specified amounts, in connection with the exercise by it of specified functions under this Part.
(2) Rules may, in particular, provide—
(a) for the amount of any fee to be calculated by reference to matters which may include—
(i) the turnover of any party to an agreement (determined in such manner as may be specified);
(ii) the turnover of a person whose conduct the OFT is to consider (determined in that way);
(b) for different amounts to be specified in connection with different functions;
(c) for the repayment by the OFT of the whole or part of a fee in specified circumstances;
(d) that an application or notice is not to be regarded as duly made or given unless the appropriate fee is paid.
(3) In this section—
(a) “rules” means rules made by the OFT under section 51; and
(b) “specified” means specified in rules.
(1) In this Part “regulator” means —
(a) the Office of Communications;
(b) the Gas and Electricity Markets Authority;
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(d) the Water Services Regulation Authority;
(e) the Office of Rail and Road;
(f) the Northern Ireland Authority for Utility Regulation;
(g) the Civil Aviation Authority ; and
(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(i) the Payment Systems Regulator established under section 40 of the Financial Services (Banking Reform) Act 2013.
(j) the Financial Conduct Authority.
(2) Parts II and III of Schedule 10 provide for functions of the CMA under this Part to be exercisable concurrently by regulators.
(3) Parts IV and V of Schedule 10 make minor and consequential amendments in connection with the regulators’ competition functions.
(4) The Secretary of State may make regulations for the purpose of co-ordinating the performance of functions under this Part (“Part I functions”) which are exercisable concurrently by two or more competent persons as a result of any enactment (including any subordinate legislation) whenever passed or made.
(5) The regulations may, in particular, make provision—
(a) as to the procedure to be followed by competent persons when determining who is to exercise Part I functions in a particular case;
(b) as to the steps which must be taken before a competent person exercises, in a particular case, such Part I functions as may be prescribed;
(c) as to the procedure for determining, in a particular case, questions arising as to which competent person is to exercise Part I functions in respect of the case;
(d) for Part I functions in a particular case to be exercised jointly—
(i) by the CMA and one or more regulators, or
(ii) by two or more regulators,
and as to the procedure to be followed in such cases;
(e) as to the circumstances in which the exercise by a competent person of such Part I functions as may be prescribed is to preclude the exercise of such functions by another such person;
(f) for cases in respect of which Part I functions are being, or have been, exercised by a competent person to be transferred to another such person;
(g) for the person (“A”) exercising Part I functions in a particular case—
(i) to appoint another competent person (“B”) to exercise Part I functions on A’s behalf in relation to the case; or
(ii) to appoint officers of B (with B’s consent) to act as officers of A in relation to the case;
(h) for notification as to who is exercising Part I functions in respect of a particular case.
(6) Provision made by virtue of subsection (5)(c) may provide for questions to be referred to and determined by the Secretary of State , the CMA or by such other person as may —
(a) prescribe circumstances in which the CMA may decide that, in a particular case, it is to exercise Part 1 functions in respect of the case rather than a regulator;
(b) be prescribed.
(6A) Where the regulations make provision as mentioned in subsection (6)(a), they must—
(a) include provision requiring the CMA to consult the regulator concerned before making a decision that the CMA is to exercise Part 1 functions in respect of a particular case, and
(b) provide that, in a case where a regulator has given notice under section 31(1) that it proposes to make a decision (within the meaning given by section 31(2)), the CMA may only decide that it is to exercise Part 1 functions in respect of the case rather than the regulator if the regulator consents.
(6B) The Secretary of State may by regulations make provision requiring arrangements to be made for the sharing of information between competent persons in connection with concurrent cases.
(6C) For the purposes of subsection (6B), “a concurrent case” is a case in respect of which—
(a) the CMA considers that Part 1 functions are, or (but for provision made under subsection (5)(e)) would be, exercisable by both it and any regulator;
(b) any regulator considers that Part 1 functions are, or (but for provision made under subsection (5)(e)) would be, exercisable by it.
(7) “Competent person” means the CMA or any of the regulators.
(8) In this section, “subordinate legislation” has the same meaning as in section 21(1) of the Interpretation Act 1978 (c 30) and includes an instrument made under—
(a) an Act of the Scottish Parliament;
(b) Northern Ireland legislation.
For the purposes of the law relating to defamation, absolute privilege attaches to any advice, guidance, notice or direction given, or decision made, by the CMA in the exercise of any of its functions under this Part.
(1) Unless the court or the Tribunal directs otherwise or the OFT has decided to take further action in accordance with section 16(2) or 24(2), CMA's finding which is relevant to an issue arising in Part I proceedings is binding on the parties if—
(a) the time for bringing an appeal under section 46 or 47 in respect of the finding has expired and the relevant party has not brought such an appeal; or
(b) the decision of the Tribunal on such an appeal has confirmed the finding.
(2) In this section—
“a CMA's finding” means a finding of fact made by the CMA in the course of conducting an investigation;
“Part 1 proceedings” means proceedings brought otherwise than by the CMA—
in respect of an infringement decision; or
in respect of an alleged infringement of the Chapter I prohibition or of the Chapter II prohibition; ...
...
“relevant party” means—
in relation to the Chapter I prohibition ..., a party to the agreement which has been found to have infringed the prohibition or is alleged to have infringed the prohibition (as the case may be); and
in relation to the Chapter II prohibition ..., the undertaking whose conduct has been found to have infringed the prohibition or is alleged to have infringed the prohibition (as the case may be).
(3) Rules of court or Tribunal rules may make provision in respect of assistance to be given by the CMA to the court or the Tribunal in Part I proceedings.
(4) In this section “the court” means—
(a) in England and Wales or Northern Ireland, the High Court,
(b) in Scotland, the Court of Session or the sheriff.
(1) This section applies to a claim in respect of an infringement decision which is brought in proceedings—
(a) before the court, or
(b) before the Tribunal under section 47A or 47B.
(2) The court or the Tribunal is bound by the infringement decision once it has become final.
(3) An infringement decision specified in section 47A(6)(a) or (b) becomes final—
(a) when the time for appealing against that decision expires without an appeal having been brought; or
(b) where an appeal has been brought against the decision, when—
(i) the appeal and any further appeal in relation to the decision has been decided or has otherwise ended, and
(ii) the time for appealing against the result of the appeal or further appeal has expired without another appeal having been brought.
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) This section applies to the extent that the court or the Tribunal would not otherwise be bound by the infringement decision in question.
(6) In this section “the court” means—
(a) in England and Wales or Northern Ireland, the High Court,
(b) in Scotland, the Court of Session or the sheriff.
(1) In this Part—
"agreement" is to be read with section 2(5) and (6);
...
...
...
...
“block exemption” has the meaning given in section 6(4);
“block exemption order” has the meaning given in section 6(2);
“the Chapter I prohibition” has the meaning given in section 2(8);
“the Chapter II prohibition” has the meaning given in section 18(4);
“class member” has the meaning given in section 47B(8)(a);
“the CMA” means the Competition and Markets Authority;
“collective proceedings” has the meaning given in section 47B(1);
“collective proceedings order” means an order made by the Tribunal authorising the continuance of collective proceedings;
...
...
“the court”, except in sections 49E, 58, 58A and 60A and Schedule 8A and the expression “European Court”, means—
in England and Wales, the High Court;
in Scotland, the Court of Session; and
in Northern Ireland, the High Court;
...
“document” includes information recorded in any form;
...
...
...
“individual exemption” has the meaning given in section 4(2);
“information” includes estimates and forecasts;
“infringement decision”, except in section 49C, has the meaning given in section 47A(6);
“injunction” includes an interim injunction;
“investigating officer” has the meaning given in section 27(1);
“investigation” means an investigation under section 25;
“Minister of the Crown” has the same meaning as in the Ministers of the Crown Act 1975;
“OFCOM” means the Office of Communications;
“officer”, in relation to a body corporate, includes a director, manager or secretary and, in relation to a partnership in Scotland, includes a partner;
“opt-in collective proceedings” has the meaning given in section 47B(10);
“opt-out collective proceedings” has the meaning given in section 47B(11);
...
...
“person”, in addition to the meaning given by the Interpretation Act 1978, includes any undertaking;
“premises” includes any land or means of transport;
“prescribed” means prescribed by regulations made by the Secretary of State;
“regulator” has the meaning given by section 54;
“representative” means a person who is authorised by a collective proceedings order to bring collective proceedings;
“represented person” means a class member who—
has opted in to opt-in collective proceedings,
was domiciled in the United Kingdom at the time specified for the purposes of determining domicile (see section 47B(11)(b)(i)) and has not opted out of opt-out collective proceedings, or
has opted in to opt-out collective proceedings;
“ assimilated block exemption regulation” has the meaning given in section 10(12);
“ assimilated exemption” has the meaning given in section 10(3);
...
...
“ the Tribunal” means the Competition Appeal Tribunal;
“Tribunal rules” means rules under section 15 of the Enterprise Act 2002.
“working day” means a day which is not—
Saturday,
Sunday,
Christmas Day,
Good Friday, or
a day which is a bank holiday under the Banking and Financial Dealings Act 1971 (c. 80) in any part of the United Kingdom.
(1A) In this Part, in respect of proceedings in Scotland, “claimant” is to be read as “pursuer” and “defendant” is to be read as “defender”.
(1B) Sections 41, 42, 45 and 46 of the Civil Jurisdiction and Judgments Act 1982 apply for the purpose of determining whether a person is regarded as “domiciled in the United Kingdom” for the purposes of this Part.
(2) The fact that to a limited extent the Chapter I prohibition does not apply to an agreement, because of an exclusion provided by or under this Part or any other enactment, does not require those provisions of the agreement to which the exclusion relates to be disregarded when considering whether the agreement infringes the prohibition for other reasons.
(3) For the purposes of this Part, the power to require information, in relation to information recorded otherwise than in a legible form, includes power to require a copy of it in a legible form.
(4) Any power conferred on the CMA by this Part to require information includes power to require any document which it believes may contain that information.
60A Certain principles etc to be considered or applied from IP completion day
(1) This section applies when one of the following persons determines a question arising under this Part in relation to competition within the United Kingdom—
(a) a court or tribunal;
(b) the CMA;
(c) a person acting on behalf of the CMA in connection with a matter arising under this Part.
(2) The person must act (so far as is compatible with the provisions of this Part) with a view to securing that there is no inconsistency between—
(a) the principles that it applies, and the decision that it reaches, in determining the question, and
(b) the principles laid down by the Treaty on the Functioning of the European Union and the European Court before IP completion day, and any relevant decision made by that Court before IP completion day, so far as applicable immediately before IP completion day in determining any corresponding question arising in EU law,
subject to subsections (4) to (7).
(3) The person must, in addition, have regard to any relevant decision or statement of the European Commission made before IP completion day and not withdrawn.
(4) Subsection (2) does not require the person to secure that there is no inconsistency with a principle or decision referred to in subsection (2)(b) so far as the principle or decision is excluded from the law of England and Wales, Scotland and Northern Ireland on or after IP completion day.
(5) For the purposes of subsection (4), a principle or decision is to be treated as not excluded from the law of England and Wales, Scotland and Northern Ireland if it is excluded only by virtue of an exclusion or revocation in the Competition (Amendment etc.) (EU Exit) Regulations 2019.
(6) Subsection (2) does not apply so far as the person is bound by a principle laid down by, or a decision of, a court or tribunal in England and Wales, Scotland or Northern Ireland that requires the person to act otherwise.
(7) Subsection (2) does not apply if the person thinks that it is appropriate to act otherwise in the light of one or more of the following—
(a) differences between the provisions of this Part under consideration and the corresponding provisions of EU law as those provisions of EU law had effect immediately before IP completion day;
(b) differences between markets in the United Kingdom and markets in the European Union;
(c) developments in forms of economic activity since the time when the principle or decision referred to in subsection (2)(b) was laid down or made;
(d) generally accepted principles of competition analysis or the generally accepted application of such principles;
(e) a principle laid down, or decision made, by the European Court on or after IP completion day;
(f) the particular circumstances under consideration.
(8) In subsection (2)(b), the reference to principles laid down before IP completion day is a reference to such principles as they have effect in EU law immediately before IP completion day, disregarding the effect of principles laid down, and decisions made, by the European Court on or after IP completion day.
(9) In this section, references to a decision of the European Court or the European Commission include a decision as to—
(a) the interpretation of a provision of EU law;
(b) the civil liability of an undertaking for harm caused by its infringement of EU law.