"(1) For the purposes of an investigation, the CMA may require any person to produce to it a specified document, or to provide it with specified information, which it considers relates to any matter relevant to the investigation. (2) The power conferred by subsection (1) is to be exercised by a notice in writing. (3) A notice under subsection (2) must indicate— (a) the subject matter and purpose of the investigation; and (b) the nature of the offences created by sections 43 and 44. (4) In subsection (1) "specified" means— (a) specified, or described, in the notice; or (b) falling within a category which is specified, or described, in the notice. (5) The CMA may also specify in the notice— (a) the time and place at which any document is to be produced or any information is to be provided; (b) the manner and form in which it is to be produced or provided. (6) The power under this section to require a person to produce a document includes power— (a) if the document is produced— (i) to take copies of it or extracts from it; (ii) to require him, or any person who is a present or past officer of his, or is or was at any time employed by him, to provide an explanation of the document; (b) if the document is not produced, to require him to state, to the best of his knowledge and belief, where it is."
"'person', in addition to the meaning given by theInterpretation Act 1978 , includes any undertaking."
"In any Act, unless the contrary intention appears, words and expressions listed in Schedule 1 to this Act are to be construed according to that Schedule."
"(1) Where the CMA considers that a person has, without reasonable excuse, failed to comply with a requirement imposed on the person under section 26, 26A, 27, 28 or 28A it may impose a penalty of such amount as it considers appropriate. (2) The amount may be— (a) a fixed amount, (b) an amount calculated by reference to a daily rate, or (c) a combination of a fixed amount and an amount calculated by reference to a daily rate. (3) A penalty imposed under subsection (1) must not— (a) in the case of a fixed amount, exceed such amount as the Secretary of State may by order specify; (b) in the case of an amount calculated by reference to a daily rate, exceed such amount per day as the Secretary of State may so specify; (c) in the case of a fixed amount and an amount calculated by reference to a daily rate, exceed such fixed amount and such amount per day as the Secretary of State may so specify. (4) The fixed amount specified for the purposes of subsection (3)(a) or (c) may not exceed£30,000 . (5) The amount per day specified for the purposes of subsection (3)(b) or (c) may not exceed£15,000 ."
"BMW (UK) Ltd and Bayerische Motoren Werke AG and any other legal entities within the same undertaking (together, "
"This is a formal notice (the "
"Statutory requirements for imposing a penalty under section 40A 5.3 BMW AG is a person within the meaning of section 40A(1) and section 59(1) CA98 and has failed to comply with a requirement imposed on it by the Section 26 Notice. As set out above, it is not disputed that BMW AG has not fully responded to the Section 26 Notice. 5.4 For the reasons set out below the CMA considers that BMW AG has no reasonable excuse for the failure to respond fully to the Section 26 Notice. 5.5 The CMA does not agree with BMW AG's contention that the Section 26 Notice is ultra vires and that the CMA does not have jurisdiction to require information from BMW AG. The CA98 makes clear that a section 26 notice may be issued in respect of an undertaking, and not merely a legal person. As an undertaking, the BMW Group therefore is a 'person' for the purposes of section 26 of the Act within the meaning given to that term in section 59 of the Act, and BMW AG forms part of that undertaking. The obligation on the undertaking to comply with the Section 26 Notice encompasses all legal persons forming part of the undertaking. Further, the BMW Group undertaking is present in the United Kingdom through BMW UK. That being so, the issue of extraterritoriality does not arise. 5.6 In any event, whether or not the BMW Group is present in the United Kingdom, the CMA is of the view that the Section 26 Notice is not ultra vires because section 26 of the Act has extraterritorial application. The CMA considers that Parliament's intention to give extraterritorial effect to section 26 CA98 is implied by the scheme, context and subject matter of the CA98. In particular, the extraterritorial application of that section is necessary in order to align the CMA's investigatory powers with its powers to enforce the prohibition set out at section 2 CA98. These enforcement powers apply to any undertaking, wherever situated, if its conduct may affect trade in the United Kingdom, has as its object or effect the prevention, restriction or distortion of competition in the United Kingdom, and is or was implemented, or intended to be implemented, in the United Kingdom. Without the extraterritorial application of section 26 CA98, the purpose of the CA98 could not effectually be achieved."
"72. The consequence of the CMA's construction ... was that a single section 26 notice, addressed to an undertaking, would trigger an obligation to respond in every single legal or natural person within that undertaking, provided only that a single legal or natural person within that undertaking had a UK territorial connection. As we have said, this is aggressively extraterritorial ."
"(4) The territorial scope of the Chapter I and Chapter II prohibitions. As we have noted, both prohibitions have a degree of extraterritorial application. We consider that this would suggest that the powers, in the CMA, to investigate infringements of these prohibitions to be similarly extraterritorial. However, the extent to which such considerations can have a material bearing on the construction of section 26 seems to us to be verging on the minimal, for these reasons: (i) Investigation precedes any finding of infringement. An investigation may find no infringement at all. There is no necessary correlation between the powers needed to investigate an infringement and the infringement itself. (ii) It follows that extensive extraterritorial powers may be required to investigate a purely domestic infringement and vice versa. (iii) We quite appreciate that broad investigatory powers are (from the point of view of enforcement) desirable. But - as in KBR itself - such desirability does not translate easily into a factor to construe a power as having extraterritorial effect."
" unless the contrary intention appears, Parliament is taken to intend an Act to extend to each territory of the United Kingdom but not to any territory outside the United Kingdom " [1] . Lord Rodger stated (paragraph [45]): "
"27. The question for consideration is whether Parliament intended to confer on the SFO power to compel a foreign company to produce documents held abroad, on pain of a criminal penalty in this jurisdiction. The answer will depend on the wording, purpose and context of the legislation considered in the light of relevant principles of interpretation and principles of international law and comity."
"16. It should be observed that an infringement of Article 85, such as the conclusion of an agreement which has had the effect of restricting competition within the Common Market, consists of conduct made-up of two elements, the formation of the agreement, decision or concerted practice and the implementation thereof. If the applicability of prohibitions laid down under competition law were made to depend on the place where the agreement, decision or concerted practise was formed, the result would obviously be to give undertakings an easy means of evading those prohibitions. The decisive factor is therefore the place where it is implemented. 17. The producers in this case implemented their pricing agreement within the common market. It is immaterial in that respect whether or not they had recourse to subsidiaries, agents, sub-agents, or branches within the community in order to make their contacts with purchasers within the community. 18. Accordingly the Community's jurisdiction to apply its competition rules to such conduct is covered by the territoriality principle as universally recognised in public international law."
"55. Since the prohibition on participating in anti-competitive agreements and the penalties which offenders may incur are well known, it is normal for the activities which those practices and those agreements entail to take place in a clandestine fashion, for meetings to be held in secret, most frequently in a non-member country, and for the associated documentation to be reduced to a minimum."
" for the purposes of an investigation "
" may require any person to produce to it a specified document, or to provide it with specified information which it considers relates to any matter relevant to the investigation "
"In construing theRestrictive Trade Practices Act 1956 , it is useful to remember the mischief which was aimed at. At one time traders used to come to restrictive agreements between themselves which were contrary to the public interest. They used to get together so as to seize all the trade for themselves, to keep up prices for their own selfish profit, to shut out any newcomers who might cut prices, and so forth. In order to get rid of such practices, Parliament required that all restrictive agreements should be registered and said they were to be void unless they were proved to be in the public interest. It put a duty on traders themselves to register the agreements. But it is obvious that some traders would not do their duty. People who combine together to keep up prices do not shout it from the housetops. They keep it quiet. They make their own arrangements in the cellar where no one can see. They will not put anything into writing, nor even into words. A nod or a wink will do. Parliament was well aware of this. So it included not only an "agreement" properly so-called, but any "arrangement" however informal."
"The Commission has only limited powers to obtain information from firms situated outside of the EEC. Under international law, the Commission is not empowered to conduct investigations outside the bounds of its territorial competence if they would impinge upon the national sovereignty of the non-member country in whose territory it was purporting to act. Accordingly, on-the-spot inspections of firms based in third countries are out of the question. In such cases, the community can - and does - send out requests for information, but it cannot impose sanctions if a firm fails to comply. One option open to the Commission is to direct a request for information to a subsidiary of a non-EU firm which is based in the EU."
"The Commission may send RFIs to undertakings located inside and outside of the EEA. In practise however, the Commission has so far refrained from enforcing procedural fines or periodic penalty payments on companies outside the EEA. To effectively use its investigative powers, the Commission frequently resorts to sending the RFI to an EU subsidiary of the non-EU undertaking requesting the subsidiary to provide the information on behalf of the entire undertaking, including all connected undertakings such as the ultimate parent company and its subsidiaries."
"8. Member States shall ensure that national administrative competition authorities may require undertakings and associations of undertakings to provide all necessary information for the application of Articles 101 and 102 TFEU within a specified and reasonable time limit. Such requests for information shall be proportionate and not compel the addressees of the requests to admit an infringement of Articles 101 and 102 TFEU. The obligation to provide all necessary information covers information which is accessible to such undertakings or associations of undertakings."
"Of critical importance to the functioning of this international system are the safeguards and protections enacted by the legislation, including the regulation of the uses to which documentary evidence might be put and provision for its return. These provisions are fundamental to the mutual respect and comity on which the system is founded.... It is ... inherently improbable that Parliament should have refined this machinery as it did, while intending to leave in place a parallel system for obtaining evidence from abroad which could operate on the unilateral demand of the SFO, without any recourse to the courts or authorities of the state where the evidence was located and without the protection of any of the safeguards put in place under the scheme of mutual legal assistance."
"39. It is clear from the wording of Article 101(1) TFEU that the authors of the Treaties chose to use the concept of an undertaking to designate the perpetrator of an infringement of competition law, who is liable to be punished by application of that provision, rather than other concepts such as those of 'company' or 'legal person'. Moreover, the European Union legislature used that concept of 'undertaking' in Article 23(2) of Regulation No 1/2003 to define the entity on which the Commission may impose a fine in order to penalise an infringement of EU competition rules... 40. In the same way, it follows from Directive 2014/104/EU of the European Parliament and of the Council of26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union . and in particular from Article 2(2) thereof, that the same legislature defined the 'infringer' upon whom it is incumbent, in accordance with that directive, to provide compensation for loss caused by the infringements of competition law attributable to that 'infringer', as being 'an undertaking or association of undertakings which has committed an infringement of competition law'. 41. In so doing, EU competition law, in targeting the activities of undertakings, enshrines as the decisive criterion the existence of unity of conduct on the market, without allowing the formal separation between various companies that results from their separate legal personalities to preclude such unity for the purposes of the application of the competition rules . .The concept of 'undertaking', therefore covers any entity engaged in an economic activity, irrespective of the legal status of that entity and the way in which it is financed, and thus defines an economic unit even if in law that economic unit consists of several persons, natural or legal. . That economic unit consists of a unitary organisation of personal, tangible and intangible elements, which pursues a specific economic aim on a long-term basis and can contribute to the commission of an infringement of the kind in Article 101(1) TFEU. 42. When such an economic unit infringes Article 101(1) TFEU, it is for that unit, in accordance with the principle of personal responsibility, to answer for that infringement. In that regard, in order to hold any entity within an economic unit liable, it is necessary to prove that at least one entity belonging to that economic unit has committed an infringement of Article 101(1) TFEU, such that the undertaking constituted by that economic unit is to be treated as having infringed that provision, and that that fact is recorded in a decision of the Commission which has become definitive . or established independently before the national court concerned where no decision as to the existence of an infringement has been adopted by the Commission. 43. It is thus clear from the case-law that the conduct of a subsidiary may be attributed to the parent company in particular where, although having a separate legal personality, that subsidiary does not determine independently its own conduct on the market, but essentially carries out the instructions given to it by the parent company, having regard especially to the economic, organisational and legal links between those two legal entities, with the result that, in such a situation, they form part of the same economic unit and, hence, form one and the same undertaking responsible for the conduct that constitutes an infringement ... . Where it is established that the parent company and its subsidiary are part of the same economic unit and thus form a single undertaking, within the meaning of Article 101 TFEU, it is therefore the very existence of that economic unit which committed the infringement that decisively determines the liability of one or other of the companies making up that undertaking for the anticompetitive conduct of the latter. 44. On that basis, the concept of an 'undertaking' and, through it, that of 'economic unit' automatically entail the application of joint and several liability amongst the entities of which the economic unit is made up at the time that the infringement was committed (see, to that effect, as regards joint and several liability for fines, judgments of and the case-law cited)."
"67. In the light of the foregoing, the answer to the first to third questions is that Article 101(1) TFEU must be interpreted as meaning that the victim of an anticompetitive practice by an undertaking may bring an action for damages, without distinction, either against a parent company who has been punished by the Commission for that practice in a decision or against a subsidiary of that company which is not referred to in that decision, where those companies together constitute a single economic unit. The subsidiary company concerned must be able effectively to rely on its rights of the defence in order to show that it does not belong to that undertaking and, where no decision has been adopted by the Commission under Article 101 TFEU, it is also entitled to dispute the very existence of the conduct alleged to amount to an infringement."
"21. Given its importance, the statement of objections must specify unequivocally the legal person on whom fines may be imposed and be addressed to that person..."
"The infringement of Community competition law must be imputed unequivocally to a legal person on whom fines may be imposed and the statement of objections must be addressed to that person (see, to that effect, Aalborg Portland and Others v Commission, paragraph 60, and Joined Cases C-322/07 P, C-327/07 P and C-338/07 P August Koehler and Others v Commission[2009] ECR I-0000 , paragraph 38). It is also necessary that the statement of objections indicate in which capacity a legal person is called on to answer the allegations."
"...the principle of personal responsibility does not preclude the possibility... that a finding of such an infringement should be definitive with regard to a subsidiary company since... it is for the economic unit which constitutes the undertaking that has committed the infringement to answer for it "
“The history of the combination was so replete with the doing of acts which it was the obvious purpose of the Sherman Act to forbid, that the defendants were liable, including the foreign corporations insofar as by the contracts made by them they became co conspirators in the combination...”
“The Bill makes provision for strengthening competition law by introducing two main prohibitions. The first (the Chapter I prohibition) is in respect of agreements or concerted practices between undertakings or decisions by associations of undertakings (together referred to as "agreements") which have as their object or effect the prevention, restriction or distortion of competition within the UK. The second (the Chapter II prohibition) is in respect of the abuse by an undertaking or undertakings of a dominant position in the UK. .. The Chapter I and Chapter II prohibitions are closely based on Articles 85 and 86 of the EC Treaty. Provision is made for the prohibitions to be interpreted in accordance with EC case law. As a result, a number of terms in the Bill such as "undertaking" are not defined. Their meaning will be that given by EC law. This is to enable the two regimes to apply in a consistent manner.”