UK Offence Report

Restrictions on disclosure of information

regulation 28(5) of The EC Competition Law (Articles 88 and 89) Enforcement Regulations 1996

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

5 Any person who discloses any information in contravention of this regulation shall be guilty of an offence and shall be liable —

a on summary conviction, to

a fine not exceeding the statutory maximum;

b on conviction on indictment, to imprisonment for

a term not exceeding two years or to

a fine or to both.

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds
a person
Conduct
contravening a requirement of the instrument
Fault element
Strict liability
Burden of proof
No statutory defence — prosecution proves everything

The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that a person meant to do it, knew about it, or was careless.

Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.

The provision states no defence, so the prosecution bears the burden on every element of the offence.

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

What would breach regulation 28(5)?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

  1. On these words an offence is committed where a person discloses any information in contravention of this regulation.
  2. Doing the thing the provision prohibits under the EC Competition Law (Articles 88 and 89) Enforcement Regulations 1996, whatever the reason for doing it.
  3. Where the requirement is a positive duty, letting the time for performing it pass without performing it.

Penalty

Mode of trial
Either way — magistrates’ court or Crown Court
Maximum fine
£5,000
Maximum prison (summary)
Not determined
Maximum prison (on indictment)
2 years

expressed as the statutory maximum (the prescribed sum): the same words mean £5,000 in England and Wales and £10,000 in Scotland.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Status not determined
Made
23 August 1996
In force from
28 August 1996
Extent
Not stated

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations make provision for the investigation of, and the making and enforcement of decisions in respect of, agreements or practices on which it appears to the Secretary of State the United Kingdom has a duty to rule under Article 88 of the EC Treaty. Article 88 applies to cases where the Council of Ministers of the European Community has not made regulations under Article 87 giving effect to Articles 85 and 86 of the EC Treaty. Subject to the possibility of exemption under Article 85(3), Article 85 prohibits agreements between undertakings which have as their object or effect the prevention, restriction or distortion of competition within the common market and which may affect trade between Member States. Article 86 prohibits the abuse by one or more undertakings of a dominant position in the common market or in a substantial part of it in so far as it may affect trade between Member States. No implementing regulation has been made under Article 87 in respect of air transport services between Member States of the European Community and countries outside the European Community or in respect of international maritime tramp vessel services. Regulation 3 empowers the Secretary of State to request the Director General of Fair Trading to carry out a preliminary investigation where it appears to the Secretary of State that the United Kingdom might have a duty to rule on whether an agreement or practice is prohibited by Article 85 or 86. Regulations 4 and 5 provide that the Secretary of State may, following such a preliminary investigation, decide to take no further action in respect of the agreement or practice, or in the case of an agreement, declare that the exemption provided for in Article 85(3) applies. Alternatively, the Secretary of State may decide to refer the matter to the Monopolies and Mergers Commission for investigation and report. Regulation 14 provides that the Secretary of State may accept enforceable undertakings from the persons concerned instead of making a reference to the MMC. The Regulations make provisions for the publication of decisions to take no further action or exemption declarations made by the Secretary of State following a preliminary investigation (regulation 6) and for the procedures to be followed with regard to the MMC’s investigation and report (regulations 7 to 13, and 15 to 18). Following a report by the MMC which concludes that an agreement exists which falls within Article 85(1), the Secretary of State may declare an exemption or make an order for the purpose of terminating the infringement (regulations 19 and 21(1) and (2)). Where the MMC concludes that an infringement of Article 86 has occurred, the Secretary of State may make an order for the purpose of terminating the infringement (regulation 21(3) and (4)). As an alternative to making an order, the Secretary of State may accept enforceable undertakings from the persons concerned (regulation 22). The regulations also enable the Secretary of State to make orders where the Commission of the European Communities authorises the United Kingdom to take measures under Article 89 of the E.C. Treaty (regulations 21(1) and 21(3)). The regulations contain provisions for the enforcement of orders (regulation 24) and provide for an offence of providing false or misleading information (regulation 25), and for restricting the disclosure of information with respect to a particular business obtained under the Regulations except for permitted purposes (regulation 28). Regulation 30 provides that the regulations may not be used to investigate agreements or practices which have ended before the regulations come into force. The Regulations come into force on the day after they are laid before Parliament.

Read the full note and every offence in this instrument

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.92.

Basis
the provision says a person is “guilty of an offence”
Confidence
0.92 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source