UK Offence Report

Decisions of the tribunal

paragraph 5 of SCHEDULE 2 of The EC Competition Law (Articles 84 and 85)Enforcement Regulations 2001 (revoked)

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 A person who without reasonable excuse fails to comply with any requirement imposed pursuant to tribunal rules which make provision for the matters referred to in—

a paragraph 9(1)(c) of Schedule

8 to the Act; or

b paragraph 9(1)(g) of Schedule

8 to the Act is guilty of an offence and liable on summary conviction to

a fine not exceeding level

3 on the standard scale.

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 This is the text as originally made; later amendments are not shown here.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
failing to comply with a notice or direction
Fault element
Strict liability
Burden of proof
An element of the offence, for the prosecution to prove

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.

“Without reasonable excuse” here is an element of the offence rather than a defence, so its absence is for the prosecution to prove (R v Charles [2009] EWCA Crim 1570).

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision; qualified by reasonable excuse (an element; prosecution disproves once raised).

The defence, as drafted

5 A person who without reasonable excuse fails to comply with any requirement imposed pursuant to tribunal rules which make provision for the matters referred to in— a paragraph 9(1)(c) of Schedule 8 to the Act; or b paragraph 9(1)(g) of Schedule 8 to the Act is guilty of an offence and liable on su

What would breach paragraph 5 of SCHEDULE 2?

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. Being served with a notice under the EC Competition Law (Articles 84 and 85)Enforcement Regulations 2001 and doing nothing by the date it specifies.
  2. Doing part of what the notice requires, where it required all of it.
  3. Disagreeing with the notice and ignoring it, rather than using whatever appeal the instrument provides.

Penalty

Mode of trial
Summary only — tried in a magistrates’ court
Maximum fine
£1,000
Standard scale
Level 3
Maximum prison (summary)
Not determined

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
15 August 2001
In force from
17 August 2001
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 are made under section 2(2) of the European Communities Act 1972 and make provision for the investigation of, and the making and enforcement of decisions in respect of, agreements or conduct on which it appears to the Director General of Fair Trading (“the Director”) the United Kingdom has a duty to rule under Article 84 of the Treaty. These Regulations revoke and replace the EC Competition Law (Articles 88 and 89) Enforcement Regulations 1996. References in these Regulations to Articles of the Treaty are to Articles of the Treaty establishing the European Community as renumbered by the Treaty of Amsterdam. Article 84 applies to cases where the Council of Ministers of the European Community has not made regulations under Article 83 giving effect to Articles 81 and 82 of the EC Treaty. Subject to the possibility of exemption under Article 81(3), Article 81 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 82 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 83 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. The procedures in the Regulations are modelled on the Competition Act 1998 (“the Act”). They enable the Director to start an investigation on his own initiative, if he thinks there are reasonable grounds for suspecting that there is or has been in existence an agreement which may infringe the prohibition in Article 81(1), or if there are reasonable grounds for suspecting that the prohibition in Article 82 has been infringed. They also provide for the Director to investigate if a party to an agreement applies for an agreement to be considered under regulation 7 or if a person applies for conduct to be considered under regulation 10. The Regulations provide that, when carrying out investigations, the Director has similar powers to those he has when investigating under the Act (including power to enter premises and power to require production of documents). The Regulations also include offences similar to those in the Act. Under regulation 4, the Director can grant an exemption from the prohibition in Article 81(1) with respect to a particular agreement if he is requested to do so and the conditions for application of Article 81(3) are met. The exemption may be granted subject to such conditions and obligations as the Director considers it appropriate to impose. Regulation 5 makes provision in relation to cancellation etc. of exemptions. If the Director decides that an agreement infringes the prohibition in Article 81(1) or that conduct infringes the prohibition in Article 82, he can give directions to bring the infringement to an end (regulations 18 and 19). The Director can also give directions if he is authorised by the European Commission, following a reasoned decision recording an infringement of Article 81(1) or Article 82, to take measures needed to remedy the situation pursuant to Article 85. There are also provisions concerning interim measures (regulation 21), appeals (regulations 25 to 28 and Schedule 2), disclosure of information (regulations 29 and 30), findings of fact by the Director (regulation 32) and Crown application (regulation 34) which are modelled on the provisions in the Act. Schedule 1 sets out the procedural rules to be followed by the Director and by applicants and the form (form ERN) to be used if an application is made under regulation 7 or regulation 10. These are modelled on the Director’s rules as set out in the Schedule to the Competition Act 1998 (Director’s rules) Order 2000 (S.I. 2000/293) and Form N (Annex 1 to those rules). These Regulations come into force on the day after they are laid before Parliament.

Read the full note and every offence in this instrument

Other offences in the same 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