Competition
(Jersey) Law 2005[1]
A LAW to promote competition in the
supply of goods and services in Jersey.
Commencement [see endnotes]
PART 1
PRELIMINARY
1 General
interpretation[2]
In this Law, unless the context otherwise requires –
“anti-competitive arrangement” has the meaning given to
that expression by Article 8(3);
“arrangement” means any type of arrangement, agreement, and
understanding, and in respect of an arrangement made by undertakings includes a
decision by an association of undertakings and a concerted practice involving undertakings;
“Authority” means the Jersey Competition Regulatory
Authority established by the Competition Regulatory
Authority (Jersey) Law 2001;
“business” includes any economic activity, trade or
profession whether or not carried on for profit;
“commercial entity” means a company, the States, a Minister
and a body created by Act of the States;
“company” means a body corporate (other than a limited
liability company registered as a body corporate under the Limited Liability Companies
(Jersey) Law 2018) incorporated with or without limited liability in any part of the
world;
“Court” means the Royal Court;
“direction” means a direction given by the Authority in
accordance with Article 36, 37, 38 or 40;
“director”, in respect of a commercial entity, means a
person occupying the position of a director in the entity by whatever name he
or she is called, and if the affairs of a commercial entity are managed by its
members shall be taken to include a member of the entity;
“document” includes information recorded in any form and,
in relation to information recorded otherwise than in legible form, references
to its provision or production include references to providing or producing a
copy of the information in legible form;
“group”, in relation to a company, means that company,
any other company that is its holding company or subsidiary and any other
company that is a subsidiary of the holding company;
“hinder”, in respect of competition, means prevent,
restrict or distort competition, or, in each case, attempt to do so;
“holding company” has the meaning given to that
expression by Article 2 of the Companies (Jersey)
Law 1991;
“land agreement” means any agreement relating to land
and includes a land purchase and sale agreement, a mortgage of land and an
agreement to lease land;
“make an arrangement” includes “enter into an
understanding”;
“merger” and “acquisition” have the meaning
given to those expressions by Article 2;
“Minister” means the Minister
for Sustainable Economic Development;
“officer”, in respect of a commercial entity, means –
(a) a
person who is a director, manager, secretary or other
similar position within the entity; or
(b) any
person purporting to act in any such capacity;
“prescribed” means prescribed by an Order made by the Minister;
“price” includes any charge, discount or margin or any
other element of a price;
“publish”, in respect of any information, means publish
in a manner that is likely to bring the information or how the information may
be obtained to the attention of the public;
“relevant competition or regulatory authority”, in
relation to a country or territory outside Jersey, means an authority
discharging in that country or territory competition or regulatory functions
corresponding to those of the Authority;
“services” includes any benefits, advices,
privileges or facilities that are, or are to be, provided, granted or conferred
in the course of business;
“States Authority” means –
(a) a
body corporate established for a purpose of the States by or under a Law; or
(b) a
company in which the States, a Minister or a body corporate referred to in sub-paragraph (a)
has a controlling interest;
“subsidiary”, in relation to a company, has the meaning
given to that expression by Article 2 of the Companies (Jersey)
Law 1991;
“supply” includes –
(a) in
relation to goods – supply (including re-supply) by way of sale,
exchange, lease, hire or hire-purchase; and
(b) in
relation to services – provide, grant or confer;
“undertaking” means a person who is carrying on a
business and includes an association, whether or not
incorporated, that consists of or includes such persons.
2 “Mergers”
and “acquisitions” defined
(1) A merger or acquisition
occurs for the purposes of this Law if –
(a) 2 or
more undertakings that were previously independent of one another merge; or
(b) a
person who controls an undertaking acquires direct or indirect control of the
whole or part of another one.
(2) Control in relation to
an undertaking is to be taken to exist if decisive influence is capable of being
exercised with regard to the activities of the undertaking.
(3) In determining if that
influence exists all the circumstances are to be taken into
account and not just the legal effect of any instrument, deed, transfer,
assignment or other act done or made.
(4) A merger or acquisition
also occurs for the purposes of this Law if –
(a) an undertaking
acquires the whole or a substantial part of the assets of another undertaking;
and
(b) the
result of the acquisition is to place the acquiring undertaking in a position
to replace or substantially replace the other undertaking in the business in
which that undertaking was engaged immediately before the acquisition.
(5) A merger or acquisition
also occurs for the purposes of this Law on the creation of a joint venture
being a business activity –
(a) carried
on jointly by 2 or more persons, whether or not in
partnership; or
(b) carried
on by a company formed by 2 or more persons to enable them to carry on that
activity jointly by means of their joint control of the company or by means of
their ownership of shares in the capital of the company.
3 Power
to vary definitions by Regulations
(1) The States may by
Regulations amend the definitions and ancillary provisions in Articles 1
and 2.
(2) Regulations under this
Article may contain such transitional, incidental, consequential
or supplementary provisions as the States thinks necessary or expedient and
such provisions may have retrospective effect where so prescribed.
4 Application
to the States and other persons[3]
This Law applies to the States, a Minister, a body created by Act of
the States and to any States Authority in so far as the States, Minister, body or States Authority is carrying on a business, but it
does not apply to the States or such a Minister, body or States Authority when
acting in any other capacity.
5 Employment
contracts exempted
Nothing in this Law applies to bona fide arrangements involving employers and employees relating to
contracts of employment.
6 Saving
of customary law relating to restraint of trade
This Law does not affect the operation of the customary law relating
to restraint of trade in so far as it is capable of operating
concurrently with this Law.
7 Authority
may publish guidelines
(1) The Authority may publish
in such manner as it considers most appropriate a guideline on any aspect of
this Law.
(2) A guideline may be
prepared by the Authority or may be a document prepared by another person with
the approval of the Authority.
(3) If it is a document
prepared by another person it may be published with deletions, amendments and
additions made by the Authority.
(4) Before publishing a
guideline the Authority may consult any person with an interest or concern in
respect of the relevant aspect of this Law.
(5) Proof that a person has
failed to comply with a guideline published in respect of a requirement of this
Law is not proof that the person has failed to comply with that requirement.
(6) However
in proceedings where it is alleged that a person has failed to comply with a
requirement of this Law –
(a) proof
of a failure to comply with a guideline published by the Authority in respect
of the requirement may be relied upon as tending to establish non-compliance
with the requirement; and
(b) proof
of compliance with the guideline may be relied upon as tending to establish
compliance with the requirement.
PART 2
PROHIBITION OF ANTI-COMPETITIVE ARRANGEMENTS
8 Prohibition
on hindering competition
(1) Except as otherwise
provided by this Part, an undertaking must not make an
arrangement with one or more other undertakings that has the object or
effect of hindering to an appreciable extent competition in the supply of goods
or services within Jersey or any part of Jersey.
(2) Paragraph (1)
applies, in particular, to an arrangement if its
object or effect is to –
(a) directly
or indirectly fix purchase or selling prices or any other trading conditions;
(b) limit
or control production, markets, technical development, or investment;
(c) share
markets or sources of supply;
(d) apply
dissimilar conditions to equivalent transactions with other trading parties,
thereby placing them at a competitive disadvantage;
(e) make
the conclusion of contracts subject to acceptance by the other parties of
supplementary obligations which, by their nature or according to commercial
usage, have no connection with the subject of such contracts.
(3) An arrangement
prohibited by paragraph (1) is in this Law referred to as an
anti-competitive arrangement.
(4) An arrangement is void
to the extent that it is, or contains or is tainted by an anti-competitive
arrangement.
(5) The fact
that an arrangement may have no legal effect, does not bind the parties to it
or could not be enforced by action in any court or by any other means does not
prevent the arrangement being prohibited by paragraph (1).
(6) An arrangement may be prohibited by paragraph (1)
although not every party to it is an undertaking so
long as at least 2 are.
9 Authority
may grant exemptions
(1) The Authority may
exempt from Article 8(1) an arrangement to which that Article would
otherwise apply.
(2) An application for an
exemption may be made to the Authority by any party to the arrangement.
(3) The Authority shall not
grant the exemption unless it has satisfied itself that having regard to any
relevant circumstances the arrangement –
(a) is
likely to improve the production or distribution of goods or services, or to
promote technical or economic progress in the production or distribution of
goods or services;
(b) will
allow consumers of those goods or services a fair share of any resulting benefit;
(c) does
not impose on the undertakings concerned terms that are not indispensable to
the attainment of the objectives mentioned in sub-paragraphs (a) and (b);
and
(d) does
not afford the undertakings concerned the ability to eliminate competition in
respect of a substantial part of the goods or services in question.
(4) To satisfy itself for
the purpose of paragraph (3) the Authority –
(a) must
publish details of the application; and
(b) must
consider any representations made to it within any reasonable period to be
specified by the Authority when it publishes details of the application.
(5) The Authority must
publish notice of an exemption it grants under this Article.
(6) The Authority may grant
an exemption under this Article –
(a) subject
to compliance with such conditions and obligations; and
(b) for
such period,
as it considers appropriate, which it shall specify in the
exemption.
(7) An exemption may be
granted so as to have effect from a date earlier than
that on which it is granted.
(8) The Authority may on
the application to it of a party to the arrangement extend the period of
validity of an exemption on any terms it considers appropriate.
(9) The Authority may in
any of the circumstances mentioned in paragraph (10) –
(a) cancel
an exemption;
(b) vary
or remove a condition or obligation of an exemption;
(c) impose
one or more conditions or obligations in respect of an exemption.
(10) Those circumstances are –
(a) the
Authority has reasonable grounds to believe that there has been a material
change in the circumstances since the exemption was granted;
(b) the
Authority has reasonable grounds to suspect that the information on which it
based its decision to grant the exemption was incomplete, false or misleading
in a material particular;
(c) there
has been a failure to comply with a condition or obligation of the exemption.
(11) The Authority must publish
notice of any action it takes under paragraph (8) or (9).
(12) An exemption granted under
this Article ceases to have effect if a condition or obligation of it is
breached.
(13) The Authority may take action under paragraph (9) of its own volition or
on a complaint made by any person.
(14) The Authority must not grant
an exemption in respect of an arrangement except on an application made to it
in accordance with this Article.
(15) A reference in this Article
to an arrangement includes, where appropriate, a proposed arrangement.
10 Block
exemptions
(1) The Minister may, after
consulting the Authority, by Order exempt from Article 8(1) a class of
arrangements to which that Article would otherwise apply.
(2) When advising the
Minister, the Authority shall, in particular, advise
him or her whether in the Authority’s opinion the exemption of the class
of arrangements –
(a) is
likely to improve the production or distribution of goods or services, or to
promote technical or economic progress in the production or distribution of
goods or services;
(b) will
allow consumers of those goods or services a fair share of any resulting benefit;
(c) does
not impose on the undertakings concerned terms that are not indispensable to
the attainment of the objectives mentioned in sub-paragraphs (a) and (b);
and
(d) does
not afford the undertakings concerned the ability to eliminate competition in
respect of a substantial part of the goods or services in question.
(3) Before advising the
Minister the Authority must –
(a) publish
a draft of the advice it intends to give; and
(b) consider
any representations made to it within any reasonable period to be specified by
the Authority when it publishes its draft advice.
(4) The Authority must
publish the advice it gives to the Minister.
(5) An Order made under
this Article may –
(a) impose
conditions or obligations subject to which an exemption granted by the Order is
to have effect;
(b) contain
different provisions for different classes of arrangements;
(c) provide
that a breach of a condition imposed by the Order has the effect of cancelling
the exemption in respect of the relevant arrangement;
(d) provide
that if there is a failure to comply with an obligation imposed by the Order,
the Authority may cancel the exemption in respect of the relevant arrangement;
(e) provide
that if the Authority considers that a particular arrangement is not one to
which paragraph (2) applies, it may declare that the exemption does not
apply to the arrangement;
(f) provide
for the manner in which the Authority may cancel an exemption in accordance
with sub-paragraph (c) or (d) or issue a declaration in accordance with
paragraph (e) and the manner in which notice of the cancellation or
declaration is to be published;
(g) provide
for an exemption to have effect from a date earlier than the date on which the
Order was made;
(h) provide
that the Order or any provision of it is to cease to have effect at the end of
a period specified in the Order.
11 Small
undertakings exemption
(1) The Minister may, after
consulting the Authority, by Order, exempt from the scope of Article 8(1)
small undertakings, as prescribed by the Order.
(2) The Order may prescribe
what constitutes a small undertaking by reference, for example, to –
(a) turnover,
earnings, market share or similar measures; or
(b) number
of employees.
(3) An Order made under
this Article may –
(a) impose
conditions or obligations subject to which an exemption granted by the Order is
to have effect;
(b) contain
different provisions for different types of undertakings or different economic activities;
(c) provide
that a breach of a condition imposed by the Order has the effect of cancelling
the exemption in respect of the relevant undertaking;
(d) provide
that if there is a failure to comply with an obligation imposed by the Order
the Authority may cancel the exemption in respect of the relevant undertaking;
(e) provide
that if the Authority considers that a particular undertaking is not one to
which the Order applies it may with the approval of the Minister make a
declaration to that effect;
(f) provide
for the manner in which the Authority may cancel an exemption in accordance
with sub-paragraph (c) or (d) or issue a declaration in accordance with sub-paragraph (e)
and the manner in which notice of the cancellation or declaration is to be published;
(g) provide
for an exemption to have effect from a date earlier than the date on which the
Order was made;
(h) provide
that the Order or any provision of it is to cease to have effect at the end of
a period specified in the Order.
(4) An Order made under
this Article has no effect if the object or effect of the arrangement is
to –
(a) directly
or indirectly fix purchase or selling prices or any other trading conditions;
(b) limit
or control production, markets, technical development, or investment; or
(c) share
markets or sources of supply.
(5) Where a small undertaking
prescribed by an Order made under this Article is a party to an arrangement
mentioned in Article 8(1) the arrangement is void unless all the parties
to it are also so prescribed.
(6) When, in accordance
with paragraph (1), the Minister consults the Authority the Authority must
publish the advice it gives to the Minister.
12 Exemption
by Minister on grounds of public policy (Part 2)[4]
(1) The
Minister may, after consulting the Authority, exempt an arrangement from
Article 8(1).
(2) The
Minister shall not do so unless satisfied that there are exceptional and
compelling reasons of public policy that make it desirable to do so.
(3) When,
in accordance with paragraph (1), the Minister consults the Authority on a
proposed exemption –
(a) the
Authority must publish the advice it gives to the Minister; and
(b) the
Minister must publish his or her reasons for granting or refusing to grant the exemption, as the case may be.
13 Land
agreement exemptions (Part 2)
The Minister may exempt a prescribed land agreement from Article 8(1).
14 Group
exclusion
Article 8(1) does not apply to an arrangement if all the
parties to it are, directly or indirectly, under the control of the same
undertaking.
15 Mergers
and acquisitions excluded
An arrangement is not an anti-competitive arrangement in so far as
it is entered into for the purpose of or as part of a merger or acquisition.
PART 3
ABUSE OF DOMINANT POSITION
16 Abuse
of dominant market position
(1) Except as otherwise
provided by this Part, any abuse by one or more undertakings of a dominant
position in trade for any goods or services in Jersey or in any part of Jersey
is prohibited.
(2) An abuse of a dominant
position may, in particular, consist in –
(a) directly
or indirectly imposing unfair purchase or selling prices or other unfair
trading conditions;
(b) limiting
production, markets or technical development to the prejudice of consumers;
(c) applying
dissimilar conditions to equivalent transactions with other trading parties and
thereby placing them at a competitive disadvantage;
(d) making
the conclusion of contracts subject to acceptance by the other parties of
supplementary obligations that by their nature or according to commercial usage
have no connection with the subject of the contracts.
(3) For the purpose of this
Article an abuse of a dominant position may consist of a failure or refusal to
do something.
17 Mergers
and acquisitions excluded
A merger or an acquisition involving an undertaking having a
dominant position in a market is not an abuse of that dominant position
contrary to Article 16(1).
18 Exemption
by Minister on grounds of public policy (Part 3)[5]
(1) The Minister may, after
consulting the Authority, exempt an undertaking or undertakings from Article 16(1).
(2) The Minister shall not
do so unless satisfied that there are exceptional and compelling reasons of
public policy that make it desirable to do so.
(3) When, in accordance
with paragraph (1), the Minister consults the Authority on a proposed
exemption –
(a) the
Authority must publish the advice it gives to the Minister; and
(b) the Minister
must publish his or her reasons for granting or refusing to grant the exemption, as the case may be.
19 Land
agreement exemptions (Part 3)
The Minister may exempt a prescribed undertaking or undertakings
from Article 16(1) in respect of any prescribed land agreement.
PART 4
MERGERS AND ACQUISITIONS
20 Certain
mergers or acquisitions not to be executed without approval
(1) A person must not
execute a merger or acquisition of a type prescribed by an Order made under
paragraph (3) except with and in accordance with the approval of the
Authority.
(2) If there is a breach of
paragraph (1) –
(a) where
any party to the merger or acquisition is a company incorporated in Jersey, the
title to any shares in the company shall not pass in accordance with the terms
of the merger or acquisition; and
(b) the
title of any property in Jersey shall not pass in accordance with the terms of
the merger or acquisition.
(3) The Minister may, after
consulting the Authority, by Order, prescribe the types of mergers and
acquisitions to which paragraph (1) shall apply.
(4) When, in accordance
with paragraph (3), the Minister consults the Authority the Authority must
publish the advice it gives to the Minister.
21 Application
for approval for merger or acquisition
(1) An application for
approval for the purpose of Article 20(1) must –
(a) be
made at the time and in such form as the Authority may from time to time determine;
(b) contain
or be accompanied by such information and documents as the Authority may
require relating to the merger or acquisition, the persons involved in it and
their businesses, in each case verified in such manner as the Authority may
require; and
(c) be
accompanied by an undertaking in a form approved by the Authority to pay the
Authority’s reasonable fees or costs in connection with the application, whether or not it is successful.
(2) At any time after
receiving an application and before determining it the Authority may request
the applicant to provide additional information or documents the Authority may
need to enable it to determine the application, verified in such manner as the
Authority may require.
22 Grant
or refusal of approval
(1) On an application under
Article 21(1), the Authority may either approve the merger or acquisition,
with or without attaching conditions or may refuse to approve it.
(2) The Authority’s
approval must be given in writing and must contain any conditions attached to
it.
(3) Those conditions may be
of a continuing nature and, if expressed to be so, shall be binding on and
enforceable against –
(a) a
party to the merger or acquisition;
(b) any commercial
entity formed as a result of the merger or acquisition;
or
(c) a
director or other officer of a party or entity mentioned in sub-paragraph (a)
or (b).
(4) The Authority may
refuse to approve a merger or acquisition if it is satisfied that the merger or
acquisition would substantially lessen competition in Jersey or any part of Jersey.
(5) The Authority may also
refuse to approve a merger or acquisition if any information or document it has
requested in connection with the application for the approval is not provided
to it within a reasonable time of being requested.
(6) The Authority’s
refusal must be given in writing and must specify the reasons for the refusal.
(7) The Authority must
publish a decision it makes under this Article.
23 Exemption
by Minister on grounds of public policy (Part 4)[6]
(1) The Minister may, after
consulting the Authority, exempt a merger or acquisition of a type prescribed
by an Order made under Article 20(3) from the requirement that it be
approved by the Authority before execution.
(2) The Minister shall not
do so unless satisfied that there are exceptional and compelling reasons of
public policy that make it desirable to do so.
(3) When, in accordance
with paragraph (1), the Minister consults the Authority on a proposed
exemption –
(a) the
Authority must publish the advice it gives to the Minister; and
(b) the
Minister must publish his or her reasons for granting or refusing to grant the exemption, as the case may be.
24 Land
agreement exemptions (Part 4)
The Minister may exempt a prescribed merger or acquisition of a type
prescribed by an Order made under Article 20(3) from the requirement that
it be approved by the Authority before execution where the merger or
acquisition is in respect of a prescribed land agreement.
25 Offence
of providing false information
A person who, in connection with an application under Article 21(1),
knowingly or recklessly provides the Authority with information that is false
or misleading in a material particular shall be guilty
of an offence and liable to a fine.
PART 5
INVESTIGATIONS
26 Authority
may conduct investigations
(1) The Authority may conduct an investigation if it has reasonable cause to
suspect that a person –
(a) is
in breach of Article 8(1), 16(1) or 20(1) or of a direction; or
(b) intends
to breach Article 20(1) (executing a prescribed merger or acquisition
without the approval of the Authority or otherwise than in accordance with the
approval of the Authority).
(2) The Authority may also
conduct an investigation if it has reasonable cause to do so in order to comply
with a request made by the Minister under Article 6(4) of the Competition Regulatory
Authority (Jersey) Law 2001 for a report, advice, assistance or information.
27 General
power to require provision of information and documents
(1) If Article 26
applies the Authority may serve a written notice on –
(a) a
person mentioned in Article 26(1); or
(b) any
other person that appears to the Authority to be in possession of relevant
information or documents.
(2) The notice may require
the person upon whom it is served to do both or either of the things mentioned
in paragraph (3).
(3) Those things are –
(a) to
provide to the Authority within a time specified in the notice information or
documents that the Authority requires to carry out the investigation;
(b) to
answer questions in respect of information the Authority requires in respect of
its investigation either forthwith or at a time and place specified in the
notice.
(4) An undertaking or
person –
(a) who fails
to comply with a notice served under paragraph (1); or
(b) who
knowingly or recklessly provides information that is false, misleading
or incomplete,
is guilty of an offence and liable to a fine.
(5) In proceedings against
an undertaking or person for an offence under paragraph (4)(a) it shall be
a defence for the accused to show that there was a reasonable excuse for the
accused failing to comply with the notice.
28 Power
to obtain information stored on a computer
(1) If Article 26(1)
applies the Authority may serve a written notice on a person who has control of
a computer that the Authority has reasonable cause to suspect is used to store information
relating to a person mentioned in Article 26(1).
(2) The notice may require
the person –
(a) to
provide the Authority with access to the computer;
(b) to
provide the Authority with any assistance it may require to do
so; and
(c) to
produce to the Authority in a form in which it may be taken away information relating to the
business of the person mentioned in Article 20(1) that is stored on the
computer or may be accessed by virtue of the computer.
(3) If Article 26(2)
applies the Authority may serve a written notice on a person who has control of
a computer that the Authority has reasonable cause to suspect –
(a) is
used to store relevant information; or
(b) is
used to gain access to, or is capable of gaining
access to relevant information, whether or not stored in Jersey.
(4) The notice may require
the person –
(a) to
provide the Authority with access to the computer;
(b) to
provide the Authority with any assistance it may require to do
so; and
(c) to
produce to the Authority in a form in which it may be taken away relevant information that is
stored on the computer or may be accessed by virtue of the computer.
(5) A person –
(a) who without reasonable excuse fails to comply
with a notice served under paragraph (1) or (3); or
(b) who
knowingly or recklessly provides information that is false, misleading
or incomplete,
is guilty of an offence and liable to a fine.
(6) In proceedings against a
person for an offence under paragraph (5)(a) it shall be a defence for the
accused to show that there was a reasonable excuse for the accused failing to
comply with the notice.
(7) In this Article
“computer” means any instrument capable of storing information in
electronic form.
29 General
power to enter premises
(1) This Article applies
where the Authority has reasonable cause to suspect that a person –
(a) is
in breach of Article 8(1), 16(1) or 20(1) or of a direction; or
(b) intends
to breach Article 20(1) (executing a prescribed merger or acquisition
without the approval of the Authority or otherwise than in accordance with the
approval of the Authority),
or is required to carry out an investigation mentioned in Article 26(2).
(2) An officer or agent of
the Authority authorised in writing by the Authority to do so may enter any
premises where the officer or agent reasonably believes there is kept information
or documents that relate to the breach or intended breach or are required for
the purpose of the investigation.
(3) Premises occupied by a
person who is not suspected of being a party to the breach or intended breach
or whose behaviour is not the subject of the investigation shall not be entered
in accordance with paragraph (2) unless the person has been given a written
notice that –
(a) gives
at least 2 days’ notice of the intended entry;
(b) indicates
the subject matter of the purpose of the entry; and
(c) indicates
the nature of the offences created by Articles 27, 28 and 31,
but premises may otherwise be entered at any time under paragraph (2)
on production by the officer or agent of evidence of his or her authorization
and a document containing the information mentioned in sub-paragraph (c).
(4) Entry may be made under
paragraph (1) –
(a) to
obtain the information or documents mentioned in Article 27(3)(a);
(b) to
put the questions referred to in Article 27(3)(b); or
(c) to
exercise the powers conferred by paragraph (5).[7]
(5) The power under paragraph (4)
to require documents to be provided includes a power –
(a) if
the documents are provided, to retain the documents or to take copies of them
or extracts from them; and
(b) if
the documents are not provided, to require the person to whom the requirement
was directed to state, to the best of his or her knowledge and belief, where
they are.
(6) If documents are
retained a list of the documents must be supplied to the person from whom they
were obtained.
30 Entry
and search of premises
(1) Where this Article
applies the Bailiff may grant a warrant that authorizes an entry onto premises.
(2) This Article applies
where the Bailiff, on application by the Authority, is satisfied by information
on oath that there is reasonable cause to suspect that an undertaking or, as the case may be, a person –
(a) is
in breach of Article 8(1), 16(1) or 20(1), or of a direction; or
(b) intends
to breach Article 20(1),
and that at least one of the circumstances specified in paragraph (3)
exists.
(3) Those circumstances are –
(a) that
a specified person has failed in any respect to comply with a notice served on
the person under Article 27(1) or 28(1);
(b) that
there are reasonable grounds for suspecting the completeness of any information
or documents provided in response to such a notice;
(c) that
the Authority is conducting an investigation under Article 26(1) and that
if a notice under Article 27(1) or 28(1) were to be served on a specified undertaking
or person upon whom it might be served under either of those Articles there is
a serious risk that it would not be complied with or that a document to which
it might relate would be concealed, removed, tampered with or destroyed.
(4) A warrant under paragraph (1)
may authorize an officer or agent of the Authority named in the warrant together
with any other person named in the warrant to enter the premises specified in
the warrant, using such force as is reasonably necessary for the purposes
mentioned in paragraph (6).
(5) A warrant issued under
paragraph (1) may be expressed to authorize entry onto premises in
accordance with paragraph (4) on more than one occasion during the period
of its validity.
(6) A person who has
entered premises in accordance with a warrant under paragraph (1) may –
(a) search
the premises;
(b) obtain
information and retain documents that appear to be relevant to the investigation;
(c) take
steps necessary to prevent interference with documents relevant to the investigation;
(d) take
copies of or extracts from documents relevant to the investigation;
(e) require
a person named in the warrant or found on the premises to answer questions
relevant to the investigation; and
(f) if
information or documents cannot be found, require a person appearing to be in
possession of relevant information to state where they are and how they may be
retrieved.
(7) If documents are
retained a list of the documents must be supplied to the person from whom they
were obtained.
(8) A warrant under paragraph (1)
is valid for one month from its date of issue.
31 General
provisions in respect of entry to premises
(1) A document retained
under Article 29(5)(a) or 30(6)(b) –
(a) may
be retained for one year; but
(b) if
within that year proceedings to which the document is relevant are commenced
against any person, may be retained until the conclusion of those proceedings.
(2) A person –
(a) who reasonably
requires a retained document for his or her business; and
(b) who
asks the person who has retention of it for the document,
must be provided by that person with a copy of it as soon as reasonably
practicable.
(3) A person –
(a) who
fails to comply with a requirement imposed on him or her under Article 29(5)(b),
Article 30(6)(e) or Article 30(6)(f); or
(b) who
obstructs a person exercising a power conferred by Article 29 or Article 30,
shall be guilty of an offence and liable to a fine.[8]
(4) In proceedings against
a person for an offence under paragraph (3)(a) it shall be a defence for
the accused to show that there was a reasonable excuse for the accused failing
to comply with the requirement.
32 Privilege
and self
incrimination
(1) Nothing in this Part
requires a person to disclose or produce information or a document the person
would in an action in the Court be entitled to refuse to disclose or produce on
the grounds of legal professional privilege.
(2) However
a lawyer must disclose the name and address of a client if required to do so by
a person acting in accordance with this Part.
(3) An answer given by a
person to a question put to the person in exercise of a power conferred by this
Law may be used in evidence against the person.
(4) However
in criminal proceedings in which the person is charged with an offence other
than an offence under Article 27(4)(b), 28(5)(b) or 55(1) (which relate to
the provision of information that is false, misleading or incomplete) –
(a) no
evidence relating to the answer may be adduced; and
(b) no
question relating to it may be asked,
by or on behalf of the prosecution, unless evidence relating to it
is adduced, or a question relating to it is asked, in the proceedings by or on
behalf of that person.[9]
33 Obstruction
of investigations
(1) This Article applies to
a person who knows or suspects –
(a) that
an investigation is being or is likely to be carried out under this Part; or
(b) that
information or documents are being or are likely to be required under this Part.
(2) The person shall be
guilty of an offence and liable to a fine if he or she –
(a) falsifies,
conceals, destroys or otherwise disposes of any
relevant information or document; or
(b) causes
or permits any relevant information or document to be falsified, concealed, destroyed or disposed of.
(3) For the purposes of
this Article, information or a document is relevant if the person knows or
suspects –
(a) that
it would be relevant to the investigation; or
(b) that
it is or is likely to be required for the purposes of the investigation.
34 Co-operation
with competition or regulatory authorities
(1) The Authority may make an arrangement with a relevant competition or
regulatory authority that provides that each party to the arrangement may
assist the other in the performance of its functions, including furnishing
information to the other party.
(2) To provide that
assistance the Authority may exercise all or any of the powers mentioned in
paragraph (3).
(3) Those powers
are –
(a) the power
to conduct an investigation mentioned in Article 26(1);
(b) the
powers to require the provision of information and documents mentioned in
Articles 27 and 28;
(c) the
powers of entry given by Articles 29, 30 and 31;
(d) the
power to communicate to the relevant competition or regulatory authority
information that is in the possession of the Authority, whether
or not as a result of the exercise of any of the powers mentioned in
sub-paragraphs (a), (b) and (c).
(4) The Authority shall not
exercise a power mentioned in paragraph (3) unless it has satisfied itself
that the assistance is required by the relevant competition or regulatory
authority solely to enable it to exercise its competition or regulatory
functions.
(5) In deciding whether to
exercise a power mentioned in paragraph (3) the Authority may take into account, in particular –
(a) whether
corresponding assistance would be given to the Authority;
(b) whether
the case concerns the possible breach of a law or other requirement that has no
close parallel in Jersey or involves the assertion of a jurisdiction not
recognized by Jersey;
(c) the
seriousness of the case and its importance in Jersey;
(d) whether
the assistance could be obtained by other means; and
(e) whether
it is otherwise appropriate in the public interest to give the assistance
sought.
(6) The Authority may
require the relevant competition or regulatory authority to provide the
Authority with an undertaking to pay the Authority’s fees or costs before
the Authority exercises a power under this Article.
(7) The Authority must not
disclose information under this Article unless it has satisfied itself that the
relevant competition or regulatory authority will comply with any conditions
subject to which the disclosure is to be made, being conditions intended to
ensure that the information is not used for any purpose other than that for
which it was disclosed.
PART 6
ENFORCEMENT
35 Decisions
following an investigation
(1) Paragraph (2)
applies if, as the result of an investigation conducted under Article 26(1),
the Authority proposes to make a decision that a
person –
(a) is in
breach of Article 8(1), 16(1) or 20(1), or of a direction; or
(b) intends to breach Article 20(1).
(2) The Authority must give
the person written notice of its proposed decision and allow the person a
reasonable time to make representations to it before making any decision.
(3) The Authority must
follow any prescribed procedures when receiving or considering representations
made to it under paragraph (2).
36 Directions
in relation to anti-competitive arrangements
(1) If the Authority decides
that an undertaking is in breach of Article 8(1) it may give the undertaking
such direction as it considers appropriate to bring the breach to an end.
(2) A direction given to an
undertaking under this Article may, in particular, require
the undertaking to terminate or modify the arrangement suspected of being an
anti-competitive arrangement.
(3) A direction given under
this Article must be given in writing.
(4) The Authority may, in
addition to, or in place of, giving a direction make an order imposing a
financial penalty on the undertaking.
37 Directions
in relation to abuse of dominant position
(1) If the Authority decides
that conduct by an undertaking is in breach of Article 16(1) it may give
the undertaking such directions as it considers appropriate to bring the breach
to an end.
(2) A direction may, in particular, require the undertaking to cease or modify
the conduct in question.
(3) A direction given under
this Article must be given in writing.
(4) The Authority may, in
addition to, or in place of, giving a direction make an order imposing a
financial penalty on the undertaking.
38 Directions
in relation to mergers and acquisitions
(1) If the Authority decides
that there has been a breach of Article 20(1) it may give the relevant
person such directions as it considers appropriate to bring the breach to an
end.
(2) If the Authority decides
that a condition attached to its approval to a merger or acquisition has not been
or is not being complied with, it may give the relevant person such directions as
it considers appropriate to ensure compliance with the condition.
(3) A direction under paragraph (1)
or (2) may, in particular –
(a) require
the person to take all such action as it may be possible to take to nullify the
merger or acquisition;
(b) impose
on the person a condition as to the manner in which the person conducts business;
(c) require
the person to sell or otherwise dispose of any part of the person’s assets
or business as directed by the Authority.
(4) A condition imposed by
virtue of paragraph (3)(b) or (c) shall have effect as if it had been
attached to the Authority’s approval to the merger or acquisition.
(5) If the Authority decides
that a person intends to breach Article 20(1) by executing a prescribed
merger or acquisition without the approval of the Authority or otherwise than
in accordance with the approval of the Authority, it may give the person such
directions as it considers appropriate to ensure that the merger or acquisition
is not executed or is not executed except in accordance with the approval of
the Authority.
(6) A direction given under
this Article must be given in writing.
(7) The Authority may, in
addition to, or in place of, giving a direction make an order imposing a
financial penalty on the undertaking.
39 Financial
penalties
(1) The Authority must not
impose a financial penalty under Article 36(4), 37(4) or 38(7) unless it
is satisfied that the breach of the prohibition was committed intentionally, negligently or recklessly.
(2) The amount of the
penalty must not exceed 10% of the turnover of the undertaking during the
period of the breach of the prohibition up to a maximum period of 3 years.
(3) The Minister may
prescribe the manner in which the turnover is to be
calculated for the purposes of paragraph (2).
(4) An order imposing a
penalty on an undertaking must be in writing and must specify the date before
which the penalty is required to be paid.
(5) If the penalty has not
been paid and the specified date has passed the Authority may apply to the
Court for an order to enforce the Authority’s order against the
undertaking concerned.
(6) The order of the Court may
provide for all of the costs of, or incidental to, the
application to be borne by all or any of the following –
(a) the person
required to pay the penalty; or
(b) where
the person required to pay the penalty is a commercial entity, a shareholder or
officer of the entity whose actions led to the imposition of the penalty.
(7) The Authority shall pay
to the Treasurer of the States any money received by it in payment of a
financial penalty.
40 Interim
measures
(1) This Article applies if
the Authority has reasonable cause to suspect that –
(a) there
has been a breach of Article 8(1), 16(1) or 20(1), or of a direction;
(b) a
condition attached to its approval to a merger or acquisition has not been or
is not being complied with; or
(c) a
person intends to breach Article 20(1),
but has not completed any investigation into the matter.
(2) The Authority may give
any direction it considers appropriate if as a matter of urgency
it considers it necessary to do so –
(a) to
prevent serious, irreparable damage to a particular person or class of persons;
or
(b) to
protect the public interest.
(3) Before giving a
direction under paragraph (2) the Authority must give each person upon
whom it intends to serve the direction written notice of its intention to do so
and allow the person a reasonable time to make representations to it.
(4) A notice under paragraph (3)
must indicate the nature of the direction that the Authority is proposing to
give and its reasons for giving it.
(5) A direction given under
this Article has effect while paragraph (1) applies, but may be replaced
if the circumstances permit by a direction under Article 36, 37 or 38 (as
appropriate).
(6) A direction given under
this Article must be in writing.
(7) In the case of a
suspected breach of Article 8(1), a direction given to an undertaking under
this Article may, in particular, require the undertaking
not to execute an arrangement except insofar as it does not hinder competition
in a manner contrary to that Article.
(8) In the case of a
suspected breach of Article 16(1), a direction given under this Article may, in particular, require the undertaking not to continue any
conduct the Authority considers to be an abuse of a dominant position.
(9) In the case of a
suspected breach of Article 20(1), a direction given under this Article may,
in particular –
(a) require
the relevant person to take all such action as it may be possible to take to
nullify or suspend the effect of the merger or acquisition;
(b) impose
on a relevant person a condition as to the manner in which
the person conducts business.
(10) Where the Authority suspects
that a person intends to breach Article 20(1) by executing a prescribed
merger or acquisition without the approval of the Authority or otherwise than
in accordance with the approval of the Authority, a direction given under this
Article may, in particular, prohibit the execution of
the merger or acquisition or prohibit its execution except in accordance with
the approval of the Authority.
41 Enforcement
of directions
(1) If the Authority decides
that a person has failed, without reasonable excuse, to comply with a direction,
the Authority may apply to the Court for an order –
(a) requiring
the person to make good the default within a time specified in the order; or
(b) if
the direction related to anything to be done in the management or administration
of a person that is a commercial entity, requiring an officer of the entity to
do it within the time specified in the order.
(2) The order may provide
for all of the costs of, or incidental to, the
application to be borne by all or any of the following –
(a) the person
in default; or
(b) where
the person in default is a commercial entity, a shareholder or officer of the entity
whose actions led to the default.
42 Attorney
General to be notified of breach
(1) If the Authority in the course of any investigation is satisfied that a
person has been guilty of an offence whether under this Law or otherwise it
must inform the Attorney General.
(2) The notification must
contain sufficient information to enable the Attorney General to determine
whether to proceed with a prosecution.
(3) If the Attorney General
decides to proceed with a prosecution the Authority must provide the Attorney
General with any information and help requested that it is able to obtain or supply.
43 Requests
for guidance
(1) This Article applies
where an undertaking wishes to seek the guidance of the Authority on whether a
proposed course of action it is considering taking would be a breach of Article 8(1)
or 16(1).
(2) The Authority’s
guidance cannot be sought under this Article as to whether a course of action
would be a breach of Article 20(1) and guidance by the Authority that a
course of action is unlikely to be a breach of Article 8(1)
or 16(1) does not imply that the same course of action would not be a
breach of Article 20(1).
(3) An application for
guidance must –
(a) be
made in such form as the Authority may from time to time determine;
(b) contain
or be accompanied by such information and documents as the Authority may
require relating to the course of action proposed; and
(c) be accompanied
by an undertaking, in a form approved by the Authority, to pay the
Authority’s reasonable fees or costs in connection with the application,
whatever the outcome.
(4) At any time after
receiving an application and before giving its guidance the Authority may
request the applicant to provide additional information or documents the
Authority reasonably requires in order to give the
guidance.
(5) If information or
documents requested under paragraph (4) are not provided within a
reasonable time the Authority need not proceed with the application.
(6) The Minister may, on
the recommendation of the Authority, by Order, prescribe the manner
in which an application for guidance shall be dealt with by the
Authority.
(7) The Order may, in particular require the Authority –
(a) to
publish in a prescribed form and manner details of applications it receives;
(b) to
seek representations in respect of an application and to take into account any it
receives when preparing its guidance;
(c) to
publish in a prescribed form and manner any guidance it gives and its reasoning
for its decision.
(8) If the Authority gives
guidance that a course of action is unlikely to be a breach of Article 8(1)
or 16(1) the Authority shall not take action
under Part 5 (investigations) or this Part in respect of that course of
conduct unless –
(a) it
has reasonable cause to suspect that there has been a material change of
circumstance since it gave its guidance;
(b) it
has reasonable cause to suspect that the information on which it based its
guidance was incomplete, false or misleading in a material particular;
(c) it
has reasonable cause to suspect that the course of action is a breach of
Article 20(1); or
(d) a
complaint about the course of action taken by the relevant undertaking or
person has been made to it.
PART 7
RESTRICTIONS ON DISCLOSURE OF INFORMATION
44 Restricted
information
(1) This Article applies to
a person who receives information relating to the business or other affairs of
a person –
(a) under
or for the purposes of this Law; or
(b) directly
or indirectly from a person who has so received it.
(2) Subject to Article 45,
the person shall be guilty of an offence and liable to imprisonment for a term of
2 years and to a fine, if he or she discloses the information without the
consent of the person to whom it relates and, where paragraph (1)(b)
applies, the person from whom it was received.
(3) Paragraph (2) does
not apply to –
(a) information
that at the time of its disclosure was already available to the public; or
(b) the
disclosure of information in the form of a summary or collection of information
so framed as not to enable information relating to a particular person to be
ascertained from it.
45 Permitted
disclosures
(1) Despite Article 44
the Authority or a person acting on its behalf may disclose information
mentioned in that Article –
(a) to
enable or assist a person acting on behalf of the Authority to discharge a
function under this Law;
(b) to a
relevant competition regulatory authority in accordance with Article 34;
(c) to
enable a suspected offence, whether or not under this Law, to be investigated;
(d) in
connection with criminal proceedings, whether or not under this Law;
(e) in
connection with any other proceedings to enforce this Law;
(f) to
the Attorney General;
(g) to a
person exercising professional skills where the Authority considers it
necessary to seek professional advice to enable or assist it to discharge a
function under this Law.
(2) The Authority must not
disclose information under this Article unless it has satisfied itself that the
recipient will comply with any conditions subject to which the disclosure is to
be made, being conditions intended to ensure that the information is not used
for any purpose other than that for which it is to be disclosed.
46 Information
supplied to Authority by relevant competition or regulatory authority
Articles 44 and 45 also apply to information supplied to the
Authority for the purpose of a function under this Law by a relevant
competition or regulatory authority in a country or territory outside Jersey.
PART 8
EVIDENCE
47 Evidence
of behaviour admissible
(1) This Article applies in
respect of an action where it is alleged that there has been a breach of Article 8(1), 16(1), 20(1)
or a direction.
(2) Evidence may be
admitted to show that a person or an employee, an
agent or, where the person is a commercial entity, an officer of the person
behaved in a manner that would not have been expected if –
(a) an
arrangement that was in breach of Article 8(1) did not exist;
(b) an
abuse of a dominant position in breach of Article 16(1) was not being pursued;
(c) a
merger or acquisition in breach of Article 20(1) had not been executed;
(d) a
merger or acquisition had been executed in accordance with the approval of the
Authority; or
(e) a
direction was being complied with.
48 Expert
witnesses
(1) The opinion of an
expert witness is admissible in evidence in proceedings under this Law.
(2) The evidence may, in particular, relate to –
(a) the
effect that an arrangement, transaction or practice may have on competition in Jersey;
and
(b) the
relevant economic principles and their application.
(3) Despite paragraph (1),
the Court may direct, if it is satisfied that the interests of justice so
require, that the opinion of an expert witness is not admissible or is not
admissible except for a specified purpose.
(4) In this Article an
expert witness means a person who appears to the Court to possess the
appropriate qualifications or experience in respect of the matter to which his
or her evidence relates.
49 Presumptions
in evidence
(1) This Article applies in
respect of an action where it is alleged that there has been a breach of Article 8(1), 16(1), 20(1)
or a direction.
(2) A presumption specified
in this Article shall be taken as a fact unless it is shown not to be true.
(3) It shall be presumed in
respect of a document that purports to have been created by a person –
(a) that
the document was created by the person; and
(b) that
a statement in the document was made by the person unless the document
expressly attributes its making to another person.
(4) It shall be presumed in
respect of a document that purports to have been created by one person and
addressed and sent to another person –
(a) that
the document was created and sent by the first person and received by the other
person; and
(b) that
a statement in the document was made by the first person, unless the document
expressly attributes its making to another person, and came to the notice of
the other person.
(5) It shall be presumed
that the person who ordinarily uses a computer is the author of a document
retrieved from it.
(6) The presumption in paragraph (7)
applies when a person authorized under this Law to remove anything from
premises states in evidence that in the exercise of that power
he or she removed a document or other material from premises and that to the
best of his or her knowledge and belief the document or other material is the
property of a specified person.
(7) It shall be presumed
that the document or other material is the property of the specified person.
(8) The presumption in paragraph (9)
applies when the presumption in paragraph (7) applies and the person
making the statement referred to in paragraph (6) also states in evidence
that to the best of his or her knowledge and belief the document or other
material relates to a business carried on by the specified person.
(9) It shall be presumed
that the document or other material relates to a business carried on by the
specified person.
50 Admissibility
of statements contained in certain documents by co-conspirators
(1) This Article applies
when a document contains a statement by a relevant person that asserts that an
act has been done, or is or was proposed to be done, by another person, being
an act (the “relevant act”) that relates to one of the matters
mentioned in paragraph (2).
(2) Those matters are –
(a) the
making or implementation of an anti-competitive arrangement; or
(b) the
doing of an act that constitutes an abuse of a dominant position contrary to Article 16(1),
that is the subject of proceedings under this Law.
(3) For the purpose of paragraph (1)
a relevant person is one who has –
(a) made
or implemented an anti-competitive arrangement; or
(b) done
an act that constitutes an abuse of a dominant position contrary to Article 16(1).
(4) Paragraph (5) has
effect if the document mentioned in paragraph (1) –
(a) came
into existence before the commencement of the proceedings referred to in paragraph (2);
and
(b) it
was prepared otherwise than in response to an enquiry made or question put by
an employee, officer or agent of the Authority or a police officer.
(5) The statement referred
to in paragraph (1) shall be admissible as evidence in the proceedings
referred to in paragraph (2)(a) or (b) that the relevant act was done or
was proposed to be done by that other person.
(6) The Court shall in
estimating the weight, if any, it attaches to the statement have regard to all
the circumstances from which any inference can reasonably be drawn as to the
statement’s accuracy or otherwise.
(7) If a statement is
admitted in evidence by virtue of paragraph (5) –
(a) any
evidence that would have been admissible as relevant to the person’s
credibility as a witness if the person who made the statement had been called
as a witness shall be admissible for that purpose;
(b) evidence
may with the leave of the Court be given of any matter that could have been put
to the person in cross-examination as relevant to his or her credibility if the
person who made the statement had been called as a witness; and
(c) evidence
tending to prove that the person who made the statement, whether before or
after making it, made, orally or otherwise, another statement inconsistent with
the first shall be admissible to show that the person has contradicted himself
or herself.
PART 9
PROVISIONS IN RESPECT OF PROCEEDINGS
51 Civil
action
(1) A person has a duty not to breach Article 8(1), 16(1)
or 20(1), or a direction.
(2) A breach of that duty
is actionable by an aggrieved person.
(3) The Court may grant
such relief as it considers appropriate, including awarding punitive or
exemplary damages.
(4) If a breach of duty
mentioned in paragraph (1) is committed by a commercial entity with the
consent or connivance of, or is attributable to neglect on the part of an
officer of the entity, that officer is also liable in the same manner as the
entity for the breach of duty.
(5) The Authority or an
aggrieved person may seek from the Court –
(a) an
injunction to restrain any actual or apprehended breach of the duty mentioned
in paragraph (1); or
(b) a
declaration that a person has breached Article 8(1), 16(1) or 20(1),
or a direction.
(6) If the Authority or an
aggrieved person has reasonable grounds for suspecting that there will be a
breach of the duty mentioned in paragraph (1) by a commercial entity the
Authority or person may seek an injunction from the Court to restrain any
action by an officer of the entity that could cause the breach of duty by the
entity.
(7) The Court may grant an
injunction under this Article on such terms as it considers appropriate.
(8) This Article has effect
whether or not the Authority or aggrieved person has
exercised or is proposing to exercise any other powers under this Law.
(9) In this Article,
“aggrieved person” means a person who has suffered or is likely to
suffer economic loss or damage as a result of an
actual or apprehended breach of Article 8(1), 16(1) or 20(1), or
of a direction.[10]
52 Limit
on costs awarded against Authority
In proceedings under this Law brought by the Authority the Court
shall not award costs against the Authority unless it is satisfied that the
Authority had no reasonable grounds for bringing the proceedings.
53 Appeals
(1) A person may appeal to
the Court against –
(a) a
decision by the Authority that the person is in breach of Article 8(1), 16(1)
or 20(1);
(b) the
giving of a direction to the person by the Authority or a requirement of, or a
condition imposed by any such direction;
(c) the
imposition on the person by the Authority, in accordance with Article 36(4),
37(4) or 38(7), of a financial penalty or the amount of any such financial
penalty.
(2) A person may appeal in
accordance with paragraph (1) within the 28 days after notice of the
decision, the giving of the direction or the imposition of the fine is given to
the person by the Authority or within such further period as the Court may
allow if it considers it desirable to do so in the interest of justice.
(3) In determining an
appeal under this Article the Court is not restricted
to a consideration of questions of law or to any information that was before
the Authority.
(4) When determining an appeal
under this Article the Court may –
(a) confirm
the decision of the Authority appealed against, revoke the decision or
substitute for the decision any decision the Authority could have made;
(b) confirm
the direction of the Authority appealed against, revoke the direction or
substitute for the direction any direction the Authority could have given
imposing such requirement and conditions as the Authority could have imposed;
or
(c) confirm
the imposition of the financial penalty appealed against, revoke the imposition
of the penalty or substitute for the penalty any penalty, whether more or less
than the penalty imposed by the Authority, that the Authority could have
imposed.
(5) The Court may make such
orders as it thinks appropriate, including ancillary orders and orders as to
costs.
(6) Except in the case of
an appeal against the imposition or amount of a financial penalty, the making
of an appeal under this Article does not suspend the effect of the decision or
direction to which the appeal relates unless the Court orders otherwise.
54 Service
of notices
(1) This Article applies to
a notice, direction or other document required or authorized by or under this
Law to be given to or served on a person.
(2) It may be given or
served –
(a) by
delivering it to the person;
(b) by
leaving it at the person’s proper address;
(c) by
sending it by post to the person at that address;
(d) by
sending it to the person at that address by facsimile, electronic transmission
or other similar means that produce a document containing the text of the
communication in legible form or is capable of doing
so; or
(e) in
the case of a company incorporated in Jersey, by being delivered to the
company’s registered office.
(3) In the case of a
partnership, an unincorporated association or a commercial entity, the notice, direction or other document may be given to or served on –
(a) a
person who is the secretary or other similar officer of the partnership,
association or entity;
(b) a
person with the control or management of the partnership, association
or entity; or
(c) any
person who purports to act in either of those capacities, by whatever name
called.
(4) For the purposes of
this Article and of Article 7 of the Interpretation (Jersey)
Law 1954 in its application to this Article, the proper address of a person
to or upon whom a document is to be given or served by post is the
person’s last known address.
(5) However
where paragraph (3) applies that address shall be the registered or
principal office in Jersey of the partnership, association or entity.
PART 10
SUPPLEMENTARY
55 Offence
of supplying false information
(1) A person who knowingly
or recklessly provides the Authority or any other person entitled to
information under this Law with information that is false or misleading in a
material particular shall be guilty of an offence if the information is
provided in circumstances in which the person providing the information
intends, or could reasonably be expected to know, that the information would be
used by the Authority to exercise a function under this Law.
(2) A person guilty of an
offence under paragraph (1) shall be liable to imprisonment for a term of
5 years and to a fine.
56 Responsibility
(1) If an offence under
this Law committed by a commercial entity is proved to have been committed with
the consent or connivance of, or to be attributable to any neglect on the part
of an officer of the entity, that officer shall also be guilty of the offence
and liable in the same manner as the entity to the penalty provided for that
offence.
(2) A person who aids,
abets, counsels or procures the commission of an
offence under this Law shall also be guilty of the offence and liable in the
same manner as a principal offender to the penalty provided for that offence.
(3) If it appears to the
Authority that it would be in the public interest that a person mentioned in paragraph (1)
or (2) should not without the leave of the Court –
(a) be a
director of a company;
(b) be in
any other way directly or indirectly concerned or take part in the management
of a company;
(c) be in
Jersey in any way directly or indirectly concerned or take part in the
management of a body incorporated outside Jersey,
the Authority may apply to the Court for an order to that effect
against that person.
(4) Article 78 of the Companies (Jersey)
Law 1991 shall apply to and in respect of an application made under paragraph (3)
of this Article as if it were an application made under paragraph (1) of
that Article.
57 Authority
to keep legislation under review
(1) The Authority may
advise the relevant Minister on the effect an enactment is having or a proposed
enactment is likely to have on competition in Jersey.
(2) If after considering an
enactment or proposed enactment the Authority is satisfied that on balance the
disadvantages suffered by the public by virtue of the constraint on competition
in Jersey imposed by the enactment or proposed enactment outweigh or are likely
to outweigh the benefits gained by the public by virtue of the enactment or
proposed enactment it shall advise the relevant Minister accordingly.
(3) If after a reasonable
time the Authority is satisfied that the relevant Minister has taken no action
or insufficient action on its advice or if the Authority is satisfied that the
relevant Minister has acted contrary to that advice the Authority shall prepare
and present a report on the subject to the Minister.
(4) The Minister must
present the report to the States at the first reasonable opportunity.
(5) In this Article –
“enactment” includes this Law;
“relevant Minister”, in respect of an enactment or
proposed enactment, means the Minister with responsibility for the enactment or
proposed enactment.
58 Power
to amend enactments by Regulations
(1) The States may, by
Regulations, amend other enactments as they consider necessary or expedient to
encourage competition in the supply of goods and services in Jersey.
(2) Regulations made under
this Article may contain such transitional, incidental, consequential, or
supplementary provisions as the States thinks necessary or expedient.
59 Right
of Authority to intervene
(1) Where the Court is
considering civil proceedings brought by virtue of this Law, other than by the
Authority, the Authority shall be notified in accordance with Rules of Court
made by the Court.
(2) In a case to which paragraph (1)
applies, the Authority shall, on giving notice in accordance with the Rules
referred to in that paragraph at any time during the proceedings, be joined as
a party to the proceedings.
(3) Where the Authority has
been joined as a party to proceedings as a result of a
notice under paragraph (2) it may, with leave, appeal against the decision
in the proceedings.
(4) The power to make Rules
of Court under –
(a) Article 13
of the Royal Court (Jersey)
Law 1948; or
(b) Article 19
of the Court of Appeal (Jersey)
Law 1961,
shall be taken to include a power to make Rules for the purposes of
this Law.
(5) In this Article “Court”
includes the Court of Appeal.
60 Authority
and Court to have regard to European Union precedents[11]
The Authority and the Court shall attempt to ensure that so far as
possible questions arising in relation to competition are dealt with in a
manner that is consistent with the treatment of corresponding questions arising
under European Union law in relation to competition within the European Union.[12]
61 Orders[13]
(1) The Minister may make
Orders to carry this Law into effect and, in particular, to
prescribe any matter that shall or may be prescribed under this Law.
(2) If the Minister
considers that an Order should be made he or she may
direct the Authority to make recommendations in respect of the proposed Order
to the Minister.
62 Transitional
provision – anti-competitive arrangements
(1) This Article applies
where immediately before the commencement of this Law an undertaking was a
party to an arrangement which if made after that commencement would be an
anti-competitive arrangement.
(2) If 6 months
immediately after the commencement of this Law the arrangement is still in
force it shall be taken to have been made at the end of that period and
accordingly to be prohibited under Article 8(1) and void in accordance
with Article 8(4).
63 Citation
This Law may be cited as the Competition (Jersey) Law 2005.