## Competition Act 1998 Guidance

Guidance on ORR's approach to the enforcement of the Competition Act 1998 in relation to the supply of services relating to railways 31 March 2016 

## Contents

 
Introduction 
3 
 
Chapter 1 - ORR's powers and concurrency 
6 
Summary 
  6 
A. ORR's concurrent jurisdiction 
  6 
B. How concurrency works in practice 
  9 
 
Chapter 2 - Application in a railway context 
13 
Summary 
13 
A. The Competition Act 1998 and Articles 101 and 102 of the Treaty on the Functioning of the European Union 
13 
B. Agreements between undertakings - Chapter I and Article 101 
16 
C. Abuse of a dominant position - Chapter II and Article 102 
21 
D. General exceptions to the competition prohibitions 
23 
E. Franchising 
26 
 
Chapter 3 - Prioritisation, choice of tool, and relationship with sector         
specific regulation 
27 
Summary 
27 
A. Introduction 
27 
B. Prioritisation criteria 
27 
 
Chapter 4 - Conduct of an investigation 
32 
Summary 
32 
A. Introduction 
32 
B. Opening an investigation 
32 
C. The case team and decision making 
35 
D. Keeping parties informed 
35 
E. Information gathering and sharing 
36 
F. Interim measures 
40 
G. Possible outcomes following investigations 
40 
 
Chapter 5 - After a Statement of Objections 
44 
Summary 
44 
A. Right to reply 
44 
C. Steps following oral hearings 
46 
D. Possible decisions 
47 
E. Sanctions for infringement 
48 

## Introduction

The Office of Rail and Road (ORR) is the independent safety and economic regulator of railways in Great Britain and monitor of Highways England. We are here to ensure the network operates safely, reliably and provides value for taxpayers and customers. We safeguard the public and the workforce by regulating the rail industry's health and safety performance. We hold Network Rail to account - and we require it to provide passengers with a punctual and reliable service. We make sure that train and freight operating companies have fair access to the rail network, and that the market is competitive and fair. As part of this mandate we have powers, in relation to the supply of services relating to railways, to enforce the prohibitions on agreements1 that prevent, restrict or distort competition and on the abuse of a dominant position, contained in Chapters I and II of the Competition Act 1998 (the Act) and in Articles 101 and 102 of the Treaty on the Functioning of the European Union (**TFEU**). ORR exercises these powers concurrently with the Competition and Markets Authority (CMA)2. 

We are part of the UK Competition Network (**UKCN**), a forum bringing together the CMA 
and UK sectoral regulators3 to promote competition and assist in deterring anti-competitive behaviour in regulated sectors. We are also a designated National Competition Authority 
(NCA) within the European Competition Network (ECN)4 for the purposes of exercising all of the powers and functions of a competition authority of a Member State of the European Union (EU)5.  

## Purpose Of This Guidance

The purpose of this guidance is to provide advice and information about how we expect to exercise our concurrent power to enforce the competition prohibitions under the Act and the TFEU and to give practical guidance on how the competition prohibitions may apply in the railways sector. In particular this guidance will provide information on: 

 1 For the purposes of this guidance, reference to 'agreements' should be taken to include decisions taken in 
trade or other associations of undertakings, and/or concerted practices. See paragraphs 2.14 to 2.18, below 
 2 Section 67(3) of the Railways Act 1993 (the **Railways Act**) 
 3 The other sectoral regulators are CAA (Civil Aviation Authority), Ofcom (Office of Communications), Ofgem 
(the Gas and Electricity Markets Authority), Ofwat (the Water Services Regulation Authority), FCA (the Financial Conduct Authority), PSR (Payment Systems Regulator), and the Northern Ireland Authority for Utility Regulation. Monitor (the regulator of healthcare services in England), has concurrent competition 
powers but not a statutory duty to promote competition; Monitor is not a member of the UKCN but attends its meetings with an observer status 
 4 Council Regulation 1/2003 on the implementation of the rules on competition laid down in Articles [101] and 
[102] of the Treaty, OJ L 1, 4.1.2003, p.1. (**Regulation 1/2003**) and the Commission Notice on cooperation 
within the Network of Competition Authorities, (OJ C 101, 27.4.2004, p. 43–53), set out the main principles of 
how the network functions 
 the scope of our jurisdiction to apply the competition prohibitions and how our 
relationship with the CMA will work in practice (Chapter 1); 
 how we consider the competition prohibitions may apply in the railways sector and 
a number of particular considerations which businesses and individuals with an 
interest in this sector may wish to have regard to (Chapter 2); 
 factors we will take into account when: prioritising our resources; determining 
whether to use our powers under the Act or alternative sector-specific tools which may be available to us to resolve issues in railways markets; and the interrelationship of our sector-specific powers with competition law (Chapter 3); 
 how we expect to conduct investigations under the Act, notably the procedures we 
will adopt and how we will engage with complainants and parties under investigation (Chapter 4); and 
 the procedures we will follow in cases where we have issued a Statement of 
Objections and our approach to determining appropriate outcomes (Chapter 5). 
This guidance supersedes and replaces the guidelines 'Application to services relating to railways'6. It reflects changes in: EU competition law; sector-specific legislation and policy; 
case law; and our approach to competition enforcement in light of our evolving experience. It is intended to constitute general advice and information about the application of the competition prohibitions in the railways sector and explain our approach to enforcing the competition prohibitions7. We are currently producing separate related guidance on our approach to monitoring and reviewing markets which will include information on how we will undertake our market investigation reference functions under Part 4 of the Enterprise Act 2002 (the **Enterprise Act**). 

This guidance is not intended to be an exhaustive guide to the legal and economic framework for the application of the competition prohibitions to agreements and conduct. It is a complement, rather than a substitute, for relevant domestic or EU legislation, case law and guidance. The CMA alone has powers to make procedural rules, which we must follow when enforcing the competition prohibitions8.  Only the CMA has powers to issue guidance on the specific areas of penalties and commitments; we must have regard to the CMA's policy and guidance in these reserved areas. As a general principle, where the CMA's guidance is more detailed than our own in a material respect, we will consider its guidance in deciding how to proceed. It is the responsibility of each business to self-assess its compliance with competition law. We recommend that businesses involved in the provision of services relating to railways 
 
have regard to this guidance (and, where appropriate, other more detailed guidance published by the CMA) in the course of reviewing their compliance with competition law. We will not endorse or approve any particular compliance programme or give pre-approval to specific agreements or practices. 

## Chapter 1 - Orr'S Powers And Concurrency Summary

This Chapter explains the scope of ORR's powers and how we expect concurrency with the CMA to work in practice. 

## A. Orr'S Concurrent Jurisdiction

1.1. 
ORR has all the powers of the CMA9 to apply and enforce Articles 101 and 102 
TFEU and the Act to deal with anti-competitive agreements or abuses of a dominant position where the relevant activities relate to the supply of services relating to 
railways in Great Britain10.  
1.2. 
We will assess on a case by case basis whether a matter falls within our concurrent 
jurisdiction according to the subject matter to which the agreement or conduct 
relates rather than the identity of the undertakings involved11. Our jurisdiction is not 
limited to cases involving railway undertakings or directly related to railways infrastructure or rolling stock; for example, we have previously undertaken investigations in relation to the supply of grease for use in electric trackside 
lubricants12 and in relation to the provision of real time train information. 
1.3. 
The meaning of railway includes tramways and also any transport system which 
uses another mode of guided transport but which is not a trolley vehicle system13. 
This means that matters relating to or affecting infrastructure such as the London Underground network, or heritage railways, would be likely to fall within our concurrent jurisdiction.  
                                            
 
railway services (meaning the carriage of passengers and goods by railway and light maintenance, station and network services); 
 
the provision and maintenance of rolling stock; 
 
the development, maintenance or renewal of a network, station or light maintenance depot; and 
 
the development, provision or maintenance of information systems designed wholly or mainly for facilitating the provision of railway services 

## 13  Sections 81 And 82 Of The Railways Act Case Study - Services Relating To Railways

In November 2009 we concluded an investigation into the provision of Real Time Train Information (RTTI) 14. RTTI is a key input into many end applications including railway station departure boards and websites about travel by rail. In 2009, strong growth in the use of RTTI was being driven by the then relatively new range of travel 'apps' developed for mobile devices. We opened an investigation into this market following a complaint from a software developer arguing that it had been denied access to key RTTI inputs. RTTI is a 'service relating to railways' because it involves the development of information systems that are designed for the provision of railway services. 

## I. Orr'S Powers

1.4. 
Where a matter relates to *services relating to railways* we may: 
 consider complaints about possible infringements of Articles 101 and/or 102 
TFEU, and/or the Chapter I and/or Chapter II prohibitions in the Act; 
 impose interim measures to prevent significant damage15; 
 carry out investigations both in response to complaints and on our own 
initiative, including requiring the production of documents and information and 
searching premises16; 
 impose financial penalties on undertakings, taking into account the statutory 
guidance on penalties issued by the CMA17; 
 give and enforce directions to bring an infringement to an end18; 
 accept commitments that are binding on an undertaking19; and 
 agree to settle a case where the business under investigation is prepared to 
admit that it has breached Article 101 and/or Article 102 of the TFEU, and/or the Chapter I prohibition and/or the Chapter II prohibition in the United Kingdom and to agree to a streamlined administrative procedure to govern the remainder of the investigation, in return for which ORR may agree to impose a reduced 
penalty on the business.  

## Ii. Conforming With European Competition Law

1.5. 
As a designated NCA, when enforcing national competition law in relation to agreements and/or conduct which may affect trade between Member States, we are 
required to also apply Articles 101 and 10220.  
1.6. 
We may not prohibit an agreement or concerted practice under national competition law if it would not be prohibited under Article 101. This does not however prevent 
the application of stricter national law to an agreement if the national law being applied pursues an objective which is predominantly different from those pursued by Article 101.  
1.7. 
National competition law is not limited to the application of the domestic competition prohibitions in the Act. We will, where necessary, assess on a case by case basis 
whether a particular matter has as its objective the enforcement of national 
competition law or whether the objective pursued is predominantly different from 
those pursued by Article 101. We note that when exercising our functions and 
powers under the Railways Act we have a number of different duties to promote a variety of objectives in the UK rail industry. Only one of those duties is the promotion of competition in the provision of railway services for the benefit of users of railway services. Other objectives include consumer protection, the environment, safety, financing and efficiency. We must, on any particular issue or case, make a judgment on the priority and balance to be achieved among these different 
objectives. Therefore, as a general principle, "the protection of competition in the market" may not be the predominant objective for us when exercising our powers 
and functions under the Railways Act.   
1.8. 
We may apply national law in a way which is stricter than Article 102 in respect of unilateral conduct. 
1.9. 
When applying and enforcing the prohibitions in Articles 101 and 102 we are bound by the fundamental principle of the primacy of EU law. We must therefore follow the 
case law of the European Courts21 in interpreting the scope of the prohibitions in the 
TFEU. We must also ensure, in so far as it is possible, that any questions arising in relation to the application and enforcement of the prohibitions in the Act, are dealt 
with in a manner which is consistent with the treatment of corresponding questions arising in EU law22. 

## B. How Concurrency Works In Practice

1.10. Our functions under the Act are exercised concurrently with the CMA and with other 
sectoral regulators where their respective concurrent jurisdiction overlaps with our 
own. We will cooperate with the CMA and other sectoral regulators in the exercise of our concurrent functions, for the purpose of strengthening the competition framework and to ensure consistency of approach. There are rules on concurrency 
to which we and other sectoral regulators must adhere23. The CMA has published 
detailed guidance on how the concurrent application and enforcement of 
competition law works in practice24. The CMA and ORR have agreed a 
Memorandum of Understanding which sets out working arrangements between the 
two organisations in relation to the application and enforcement of the competition 
prohibitions in circumstances where there is concurrent jurisdiction25. These 
documents contain greater detail on the concurrent enforcement of the competition prohibitions and should be read in conjunction with this guidance.  

## I. Case Allocation

1.11. In all circumstances there will be an overlap between ORR and the CMA in terms of 
which authority should take forward a case. There may also be instances where 
there are overlaps between ORR and other sectoral regulators. As only one 
authority can exercise prescribed functions26 in respect of a case at any moment in 
time, cases must be allocated to one authority, and, where appropriate, transferred 
between concurrent authorities. 
1.12. In determining case allocation the guiding principle to be applied is that a case will 
be allocated to the regulator that is better or best placed to exercise the concurrent 
competition enforcement powers27. We will endeavour to reach agreement on which authority will have jurisdiction to exercise its powers to enforce the competition prohibitions in respect of each particular case and will engage with the CMA and any other sectoral regulators in a spirit of constructiveness and cooperation. If agreement cannot be reached, the CMA may determine which relevant competition authority should exercise its concurrent power28. 

1.13. The CMA may direct that a case in progress be transferred from ORR to the CMA, if 
it is satisfied that to do so would further the promotion of competition within any 
market or markets in the United Kingdom, for the benefit of consumers29.   
1.14. Where Article 101 and/or Article 102 may apply, a case will also be subject to the 
case allocation principles for determining whether a UK NCA or a NCA from another 
Member State is best placed to act. The European Commission has the power to take over cases involving an alleged breach of Article 101 and/or Article 102 TFEU from NCAs by initiating proceedings. Further details on case allocation as between NCAs from different Member States are provided in guidance adopted by the 
CMA30. 

## Ii. Information Sharing

1.15. We will share information with the CMA and other sectoral regulators for the 
purposes of general liaison and, in relation to specific cases where it is appropriate to do so, in order to facilitate the discharge of our functions under the Act. The procedures for sharing information with the CMA are set out in the Memorandum of 
Understanding31.  
1.16. Prior to sharing any information with the CMA and other sectoral regulators we will 
have regard to the provisions in Part 9 of the Enterprise Act 32. 

## Iii. Criminal Cartels

1.17. The criminal cartel offence was created with the intention of criminalising and 
deterring behaviour by individuals leading to the most serious  and damaging forms 
of anti-competitive agreements, namely 'hard-core cartels'. In essence, a hard-core cartel is an agreement between competitors to fix prices, share markets, rig bids or 
paragraph 3.22 
 28 Regulation 5 of the Concurrency Regulations 
 29 Regulation 8 of the Concurrency Regulations; the CMA may only issue such a direction prior to a 
statement of objections being issued 
 30 OFT442 
 31 Paragraphs 37 to 48 of the Memorandum of Understanding 
 32 Notably the considerations in section 244 of the Enterprise Act 
 
limit output at the expense of the interests of customers and without any countervailing customer benefits. Typically, hard-core cartels are secret arrangements under which competitor businesses agree to coordinate their activity, usually in order to preserve or drive up prices33.  

1.18. We do not have concurrent jurisdiction to prosecute the cartel offence. In the event 
that we uncover a suspected criminal cartel, we will refer the matter to the CMA. 

## Iv. Leniency

1.19. It is in the interest of the economy of the UK, and the EU more generally, to have a 
policy of granting lenient treatment to undertakings which inform competition law 
enforcement authorities of cartel activities and which then cooperate with those 
authorities. It is the often secret nature of cartel activities which justifies such a policy. The interests of customers and consumers in ensuring that such activities are detected and prohibited outweigh the policy objectives of imposing financial penalties on those undertakings which participate in cartel activities but which cooperate to a significant degree with competition authorities. 
1.20. Further information on the types of lenient treatment which may be available to 
businesses and the conditions which must be met to secure those benefits, is set 
out in guidance published by the OFT and adopted by the CMA34.  
1.21. We would suggest that initial applications for leniency markers in cases involving 
the railways sector be made to the CMA in accordance with its published leniency 
process and procedure35. The CMA is the only authority empowered to grant a noaction letter with respect to prosecutions under the criminal cartel offence and, for that reason, generally administers the grant of markers (in collaboration with sectoral regulators where relevant).  We will consider ourselves bound by the type 
of any marker granted by the CMA, subject to the conditions of leniency continuing 
to be met. However, the ORR will be responsible for deciding the amount of any 
leniency discount ultimately granted in cases which have been allocated to it for 
enforcement under the Act. 
1.22. In leniency cases in the railways sector, leniency information given to the CMA may 
be passed to us if the case is allocated to ORR for enforcement under the Act. We 
                                            
 35 OFT1495 
 
will use leniency information passed to us only for the purposes of enforcing the Act unless the leniency applicant agrees otherwise. 

1.23. In considering immunity from, or applying any reduction in, financial penalties under 
the Act, we will follow the CMA's guidance and policy36, though as noted at 
paragraph 1.21 above, we cannot grant a no-action letter with respect to  
prosecutions under the criminal cartel offence. 
 
                                            
36 OFT423  

## Chapter 2 - Application In A Railway Context Summary

This Chapter describes how the competition prohibitions may apply in the context of the railways sector and how this is likely to affect our approach to enforcing the competition prohibitions.    

## A. The Competition Act 1998 And Articles 101 And 102 Of The Treaty On The Functioning Of The European Union

2.1. 
For the purposes of this guidance, a competition infringement is a breach of any of 
the competition prohibitions contained in the Act or the TFEU. The UK prohibition in Chapter I of the Act is equivalent to the EU prohibition in Article 101 TFEU. The UK prohibition in Chapter II of the Act is equivalent to the EU prohibition in Article 102 TFEU. 
2.2. 
This chapter first sets out principles applicable across all of the prohibitions, before providing guidance on how each of the prohibitions may apply in the railways sector. 

## I. Undertakings

2.3. 
The competition prohibitions apply only to agreements between *undertakings*, and, 
abuses committed by dominant *undertakings* respectively.  
2.4. 
The term 'undertaking' is a broad concept which may, in the particular circumstances of each case, refer to any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed. The term may 
therefore include: companies; firms; businesses; partnerships; individuals operating as sole traders; associations of undertakings (including trade associations); nonprofit making organisations; and (in some circumstances) public entities that offer 
goods or services in a given market37. Key participants within the rail industry 
including train operating companies and fully or partly publicly owned players such as Network Rail, TfL, and others, are likely to be viewed as undertakings for most of their activities.  
2.5. 
Organisations with separate legal personalities (for instance distinct limited 
companies) may be considered to be part of one and the same undertaking if they are found to form a 'single economic unit'. A parent company may be part of the same undertaking as a subsidiary if the parent exercises a decisive influence over 
the subsidiary38. Companies in the same corporate group will often be considered to constitute a single undertaking.  

2.6. 
In the railways context, holding companies which exercise decisive influence over subsidiary companies that (for example) have been specifically incorporated to undertake defined activities, such as a rail franchise, should be aware that they may 
be held liable for the actions of the subsidiary. 
2.7. 
It is for businesses to self-assess the extent to which they form part of the same undertaking with other legal entities. 

## Ii. Market Definition

2.8. 
To assess the application of the competition prohibitions, it will generally be necessary for us to define a relevant market or markets. Defining a relevant market is not an end in itself; rather, it provides a framework for competition analysis. Defining the market is generally a key step in identifying the competitive constraints acting on a supplier of a given product or service and analysing the effects of agreements or conduct. Markets are defined in terms of the products or services involved, geographical scope and, in some cases, the time period in which those products or services are sold. 
2.9. 
In broad terms, defining markets involves an analysis of the extent to which identified products or services are substitutable, for example by reason of their characteristics, prices or intended use. 'Demand-side substitution' takes place when 
consumers switch from one product to another in response to a change in the relative prices of goods. Supply side substitution refers to suppliers switching production facilities in order to expand the range of goods that they sell. Where an identified product or service is readily interchangeable with another, it is likely to be considered to be within the same market. On the other hand where a product or 
service is not interchangeable or interchangeable only to a limited extent, it is likely to constitute a separate market. For example in relation to rail passenger transport, customers utilising railway services at peak times may not view rail travel during off peak times as a viable substitute for rail travel at peak times (because using off peak services would mean passengers would not get to work on time). Rail travel at peak times will constitute a separate market to rail travel at off peak times if customers with fixed preferences regarding time of travel are sufficiently numerous. 
2.10. In cases involving transport markets, the definition of geographic and product 
markets are typically closely related as the geography in which a service is being 
delivered typically represents a key intrinsic element of the service's value. 
2.11. There are a range of economic tools which may be used for the purposes of 
determining the substitutability of products and services. We will define the relevant 
market(s) for each individual case based on the particular facts of that case; in 
doing so we will follow the framework set out in guidance adopted by the CMA39. 
Typically in defining markets we will utilise the 'hypothetical monopolist' test, which 
involves assessing how customers (the demand side) and other suppliers (the supply side) would react to an attempt by a hypothetical monopolist to introduce a 
small but significant non-transitory increase in price (**SSNIP**) (usually 5% to 10%) to 
the product or service in question. Analysis of the hypothetical monopolist test will typically involve consideration of: 
 the extent to which customers would switch to other products or services in 
response to a SSNIP, and how long this would take; 
 the extent to which alternative suppliers would start supplying the product or 
service in question in response to a SSNIP and how long this would take; and 
 the extent to which customers would switch to other suppliers in other areas in 
response to a SSNIP and the extent to which suppliers from other areas would start supplying the relevant product or service in the relevant geographic area. 
2.12. We will also consider product characteristics in our definition of markets. For 
example, in a railway transport context, we may typically consider factors such as, 
for passenger services, journey purpose, and, for freight services, the relative 
merits of different modes of transport from a customer perspective. 

## Case Study

In November 2006 we concluded an investigation into the market for coal haulage by rail40. In this investigation we had to carry out a market definition exercise. We concluded that, in Great Britain at the time, there was a national market for coal haulage by rail, distinct from other transport modes and from the haulage of other goods by rail. In order to reach this conclusion we examined factors such as: the relative costs and service quality levels that it was possible to achieve using rail as opposed to road transport; and from a supply side perspective the speed and ease with which rail freight operators could procure network capacity and rolling stock.  

                                            

## Our Conclusions Rested On Analysis That We Carried Out Using Evidence Gathered From The Companies Involved Using Our Powers Of Investigation. B. Agreements Between Undertakings - Chapter I And Article 101

2.13. ORR may investigate where it has reasonable grounds to suspect there are 
agreements between undertakings41 which have as their object or effect the 
appreciable prevention, restriction or distortion of competition. Article 101 applies to 
agreements that may affect trade between Member States of the EU42. The Chapter 
I prohibition applies to agreements which may affect trade within the United Kingdom. 

## I. Anti-Competitive Agreements

2.14. Reference to 'agreements' includes informal co-operation falling short of a formal 
agreement43, concerted practices and decisions taken by associations of 
undertakings (often taking the form of trade associations).  
2.15. In particular, these prohibitions apply to agreements which: 
 directly or indirectly fix purchase or selling prices or any other trading 
conditions; 
 limit or control production, markets, technical development or investment; 
 share markets or sources of supply;  apply dissimilar trading conditions to equivalent transactions with other trading 
parties, thereby placing them at a competitive disadvantage; or 
competition-law . General guidance on the application of competition law to the activities of trade 
associations, professions and self-regulating bodies is set out in the OFT408, Trade Associations, 
Professions and Self-Regulating Bodies (December 2004) 
https://www.gov.uk/government/publications/trade-associations-and-professionalself-regulating-bodies-andcompetition-law  
 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.  
2.16. Examples of potentially anti-competitive agreements which may constitute 
infringements of the Chapter I prohibition and/or Article 101 that may arise in the 
railways sector include: 
 Agreements or conscious cooperation between companies not to compete 
for certain business, for example contracts, such as: passenger rail franchises; freight contracts; contracts to supply rolling stock; and contracts to supply Network Rail. 
 Agreements regarding the setting of technical standards for the supply of 
products and services to Network Rail or train operators. Such agreements may lead to efficiencies by reducing costs, and/or raising quality or compatibility, but could be harmful overall where their principal overall effect is to limit competition, for example by raising entry barriers. 
 Agreements between competing train operators or other industry 
participants about prices to be charged for certain products or services. Recognising the benefits of a national network, the rail industry currently encourages a degree of co-operation between train operating 
companies44, but the lawfulness of such agreements must still be 
considered on a case by case basis. 
2.17. Such agreements may also fall within the scope of the prohibitions if they are 
carried out in the context of discussions between members of a trade association or the agreement manifests itself in the form of a decision by a trade association to be 
recognised by its members. 
2.18. This list is non-exhaustive and is only illustrative. We may apply the Chapter I 
prohibition and the Article 101 prohibition to other types of agreements which may restrict, distort or prevent competition to determine whether they constitute an infringement of competition law. 

## Ii. Exemptions To Chapter I And Article 101

2.19. An agreement may be exempt from the Chapter I and Article 101 prohibitions if it 
meets certain criteria, which are set out at section 9(1) of the Act and Article 101(3) TFEU respectively. 
2.20. The criteria are that the agreement in question: 
 contributes to improving production or distribution or promoting technical or 
economic progress; 
 allows consumers a fair share of the resulting benefit; 
 does not impose on the undertakings concerned restrictions which are not 
indispensible to the attainment of these objectives; and 
 does not afford the undertakings the possibility of eliminating competition in 
respect of a substantial part of the products or services in question.  
2.21. We will not give pre-approval for a particular practice or agreement. It is for 
businesses to self-assess whether the agreement or arrangement in question is 
covered by this exemption; the European Commission has published guidance to 
assist businesses and their advisers for this purpose45.  

## Iii. Block Exemptions

2.22. The Secretary of State may, by order, on a recommendation from us or the CMA, 
exempt categories of agreement from the Chapter I prohibition46 where they fall 
within the criteria set out in section 9 of the Act (**UK Block Exemptions**). The 
European Council and the European Commission may make block exemption regulations which have the effect of exempting particular categories of agreements 
which are considered to satisfy the criteria set out in Article 101(3) (EU Block Exemptions).  
2.23. It is for businesses to self-assess whether their conduct falls within either a UK or a 
EU Block Exemption.  

## Eu Block Exemptions - Council Regulation 169/2009

2.24. Where an agreement falls within a EU Block Exemption it is not prohibited under 
Article 101 and it will also be exempt from the Chapter I prohibition47. 
2.25. Of particular relevance to the railways sector48 is Council Regulation 169/200949. By 
the terms of this Regulation the prohibition in Article 101(1) does not apply to 
domestic Chapter I prohibition 
agreements in rail, road and inland waterways, the object or effect of which is to apply technical improvements or to achieve technical cooperation by means of: 

 the standardisation of equipment, transport supplies, vehicles or fixed 
installations; 
 the exchange or pooling, for the purpose of operating transport services, of 
staff, equipment, vehicles or fixed installations; 
 the organisation and execution of successive, complementary, substitute or 
combined transport operations and the fixing and application of inclusive rates and conditions for such operations, including special competitive rates; 
 the use, for journeys by a single mode of transport, of the routes which are most 
rational from the operational point of view; 
 the coordination of transport timetables for connecting routes; 
 the grouping of single consignments; and 
 the establishment of uniform rules as to the structure of tariffs and their 
conditions of application provided such rules do not lay down transport rates 
and conditions. 

## Uk Block Exemptions– Public Transport Ticketing Schemes

2.26. An agreement which falls within the category of agreements specified in a UK Block 
Exemption order will be automatically exempt from the Chapter I prohibition. 
2.27. The Competition Act 1998 (Public Transport Ticketing Schemes Block Exemption) 
Order (SI 2001 No 319) came into force on 1 March 2001 and was subsequently amended, by the Competition Act 1998 (Public Transport Ticketing Schemes Block 
Exemption) (Amendment) Order 2011 (SI 2011 No. 227 and the Competition Act 
1998 (Public Transport Ticketing Schemes Block Exemption) (Amendment) Order 
201650. This domestic block exemption covers ticketing schemes that provide multioperator travel cards, multi-operator individual tickets, through tickets and short and 
long distance add-on tickets for local travel on buses, trains, trams and domestic 
                                                                                                                                                   
5.12.2000, p.7); Commission Regulation (EC) No2790/1999 on the application of Article 101(3) of the Treaty to categories of vertical agreements and concerted practices (OJ L 336, 29.12.1999, p.21); and Commission Regulation (EU) 316/2014 on the application of Article 101(3) of the TFEU to categories of technology transfer agreements (OJ L 93, 28.3.2014, p.17-23) 

 
ferry services. The block exemption sets out a number of conditions which a ticketing scheme must satisfy in order to benefit from it. 

2.28. The public transport ticketing schemes block exemption automatically exempts the 
agreements within its scope from Chapter I of the Act insofar as they meet certain specified conditions. It allows for public transport operators to enter into agreements 
to offer passengers tickets that they can use on the services of two or more operators. This normally increases the mobility of passengers and makes travel more flexible.  
2.29. The CMA is proposing to issue revised guidance, to reflect amendments made to 
the block exemption, to clarify some areas which are thought to be unclear, and to update certain aspects of the guidance to take account of new formats and products 
that have emerged (such as the introduction of smart tickets) 51. 

## Withdrawal Of Block Exemptions

2.30. We may withdraw the benefit of a EU Block Exemption in cases where the following 
conditions are met: 
 the territory of the UK or part of it, in the relevant case, has all the 
characteristics of a distinct geographic market; and 
 the agreements in question have effects that are incompatible with Article 
101(3) TFEU in the territory of the UK.  
2.31. No later than 30 days prior to adopting a decision withdrawing the benefit of a EU 
Block Exemption we will inform the European Commission52. 
2.32. We may also, in certain circumstances, withdraw the benefits of a UK Block 
Exemption. For example, we may withdraw the benefit of the Public Transport 
Ticketing Services block exemption in relation to a particular agreement if we are 
satisfied it does not meet the statutory exemption criteria53, notwithstanding the fact 
that it would otherwise meet the conditions of the block exemption itself. Before taking this step, we must give notice in writing of our proposal and consider any representations made. 

## Iv. Appreciable Effect On Trade Between Member States, Or, Competition

2.33. In order for Article 101(1) to be applicable the agreement in question must affect 
trade between Member States, or, competition to an appreciable extent. In 
assessing whether or not an agreement has an appreciable effect on competition or 
                                            
trade between Member States we will have regard to the European Commission's Notice on agreements of minor importance54 which sets out, using specified market share thresholds, the Commission's views as to what is and is not an appreciable restriction of competition under Article 101.  

2.34. If an agreement has as its object55 the prevention, restriction or distortion of 
competition it will, by its nature, have an appreciable effect on competition56.             

## C. Abuse Of A Dominant Position - Chapter Ii And Article 102

2.35. Chapter II of the Act and Article 102 TFEU prohibit conduct by one or more 
undertakings which amounts to an abuse of a dominant position in a market. Article 102 applies to conduct within the EU or in a substantial part of it in so far as it may 
affect trade between Member States of the EU57. The Chapter II prohibition applies 
if the dominant position is held within the whole or part of the UK and the conduct in question may affect trade within the whole or part of the UK. 

## I. Dominance

2.36. In order to contravene the prohibitions in Chapter II and Article 102 an undertaking 
or undertakings must first be found to be dominant or collectively dominant58 in a 
market. 
2.37. A dominant market position is defined as a position of economic strength enjoyed 
by an undertaking which enables it to prevent effective competition from being maintained in the relevant market by affording it the power to behave to an appreciable extent independently of its competitors, customers and ultimately its 
consumers59. Central to the determination of whether an undertaking is in a 
dominant position in a market is an assessment of its market power. In assessing 
same approach as outlined for Chapter I/Article 101(1), see footnote 42, above  
whether an undertaking enjoys a dominant position we will have regard to guidance adopted by the CMA60 and guidance issued by the European Commission61. 

2.38. A non-exhaustive list of factors that we will take into account when assessing 
dominance under Chapter II or Article 102 includes: 
 the presence of existing competitors; 
 the likelihood of potential competitors entering the market;  whether countervailing buyer power exists;  barriers to entry; and 
 the market share of the undertaking(s) over a period of time. There are no 
specified market share thresholds for dominance under Chapter II or Article 102, although the European Court has stated that dominance can be presumed, 
in the absence of evidence to the contrary, if an undertaking has a market share 
persistently above 50%62.  

## Ii. Abuse

2.39. In general terms, conduct may be abusive when it is directly exploitative of 
customers (for example through the charging of excessive prices) or where it has an adverse effect on the competitive process (for example conduct which raises barriers to entry or increases competitors' costs).  
2.40. Examples of conduct within the railways sector which could potentially constitute an 
abuse of a dominant position include: 
 Owners of facilities that are essential to operating a downstream rail transport 
service, denying downstream competitors access to their facilities without justification, or charging excessive or discriminatory prices for those competitors to use those facilities. Similar issues may exist where firms have access to essential non-physical inputs, such as data or information. 
 A dominant firm that is vertically integrated and controls an essential 
upstream input may be able to eliminate downstream competition by creating a 'margin squeeze' between downstream retail prices and costs, where the latter includes the cost of procuring the essential upstream input. 
 Railway undertakings in a dominant position boycotting certain suppliers, as 
a result of, for instance, ancillary matters unrelated to the service being tendered for. 
 Pricing practices by rail freight operators that limit rivals' ability to compete. 
Competition on prices (alongside quality, choice, etc.) is generally a sign of a market working well and of consumer benefits, but in certain circumstances low pricing and discounting, when exercised by firms with substantial market power, may be anti-competitive. One key example of anti-competitive pricing is 'predatory pricing', whereby a dominant firm sets very low prices with the aim of driving its competitors out of the market. Other examples include certain types of rebate schemes.  
2.41. An undertaking can also contravene Chapter II or Article 102 where it is dominant in 
one market but the abuse takes place in a separate related market. An example of this in a railway context could be a dominant supplier of specialist railway equipment tying in a purchaser (perhaps by means of warranty conditions which are not objectively justifiable) to long-term maintenance services or products, thereby 
preventing other suppliers of those services or products from competing effectively in the market.  

## Iii. Exemptions From Chapter Ii/Article 102

2.42. There is no legal exemption regime specific to Chapter II or Article 102. Conduct 
which is otherwise anti-competitive may however be subject to the general 
exclusions from the competition prohibitions (see below). It is also a defence for the dominant undertaking to show that its conduct is objectively justified. A dominant 
undertaking may achieve this by demonstrating that its conduct is objectively 
necessary or by demonstrating that its conduct produces substantial efficiencies 
which outweigh any anti-competitive effects on consumers63. 
2.43. Of particular interest in the railway context is that anti-competitive conduct may, in 
certain circumstances, be considered objectively necessary for health and safety reasons related to the nature of the product or service in question. We will draw upon our significant knowledge of health and safety in the railways sector in determining the merits of such arguments. 

## D. General Exclusions To The Competition Prohibitions

2.44. In addition to the exemptions noted above there are a number of general exclusions 
from the competition prohibitions which apply regardless of the category of conduct. It is for businesses to self-assess whether conduct is excluded from the application 
of the competition prohibitions or whether conduct which may otherwise infringe the competition prohibitions may nonetheless benefit from the application of an exclusion. 

## I. Services Of General Economic Interest

2.45. Conduct which is carried out by undertakings entrusted (by a public authority)64 with 
the operation of services of general economic interest (**SGEI**) or which have the 
character of monopolies producing revenue for the State are excluded from the application of the competition prohibitions insofar as the application of those 
prohibitions65 would obstruct the performance, in law or fact, of the particular tasks 
assigned to the undertaking66.  
2.46. It is ultimately for businesses to self-assess whether their conduct, which may 
otherwise be prohibited, benefits from the SGEI exclusion. 
2.47. We consider that the legal threshold for establishing that the SGEI exclusion should 
apply is a high one. In considering any argument that the SGEI exclusion should 
apply, we will have regard to the guidelines adopted by the CMA67.  
2.48. We note that this exclusion may be relevant in the franchised passenger rail 
transport sector, to the extent that transport services provided pursuant to a public service contract (i.e. franchise agreement) may, in certain circumstances, be 
classified as a SGEI68. When considering the application of the exclusion in this 
context, we will take into account the extent to which the relevant service is a specified part of the franchise agreement, the nature of the obligation placed on the 
franchisee by virtue of that agreement, the degree and nature of competition, and the wider market structure. We will also consider on a case by case basis the extent to which a franchisee has the character of a revenue producing monopoly and 
compensation must be established in advance in an objective and transparent manner; (iii) the 
compensation cannot exceed the costs incurred in discharging the public service obligation (and taking into account the relevant receipts and also a reasonable profit margin); and (iv) where there is no public 
whether the application of the competition prohibitions would obstruct the tasks assigned to it. 

## Ii. Agreements And Conduct Which Are Subject To Legal Direction

2.49. In situations where national legislation or the legal framework created by such 
legislation requires undertakings to engage in certain conduct, and operates to 
entirely eliminate the possibility of competitive activity or autonomy on the part of the undertaking, the undertaking itself will not be in violation of the competition rules 
for carrying out the conduct required of it69. However, to the extent that an 
undertaking has any autonomy within a legal regime, or in situations where there is 
some scope for residual competition, the competition prohibitions will apply to the undertaking's conduct.  
2.50. Therefore undertakings remain responsible for ensuring that their conduct does not 
infringe the competition prohibitions, even in cases where there has been an approval of conduct under sector specific legislation by a regulator (for instance in relation to pricing practices). We will consider, when applying the competition 
prohibitions, the extent that the undertaking has a degree of discretion within the limits set by the regulator and/or has the ability to revert to the regulator for further 
authorisation70.  
2.51. In the railways sector there are agreements entered into by railway undertakings to 
meet licence obligations or by virtue of directions pursuant to sections 16A, 17, 18, 
19, 19A (and Schedule 4A), 22A and 22C of the Railways Act71. We consider that 
conduct carried out as a result of these agreements will only be excluded from the 
application of the competition prohibitions to the extent that such conduct engaged in by undertakings relates specifically to meeting legal requirements placed on them by such licence obligations or directions which can be met in no other way. 

## E. Franchising

2.52. The franchise process is one where potential competitors compete to offer a range 
of services over a group of routes72. This process means that there is 'competition 
for the market' as opposed to significant levels of competition in the market. 
Potential franchisees need to assess their expectation of overall costs and revenues which they will be able to achieve. The Department will regulate certain fares by price caps or tariff baskets whilst leaving other fares unregulated, and will also specify service levels, for example frequency of trains on any given route. 
2.53. When considering competition complaints about services which fall within a 
franchise package (for example passenger rail fares), we will have regard to the fact 
that there has been competition for the market; however we will also consider the 
length of time that has passed since such competition took place, the number of participants in the franchising competition and the extent to which the franchisee 
has exercised its discretion within the parameters set by the franchise agreement. 
                                            

## Chapter 3 - Prioritisation, Choice Of Tool, And Relationship With Sector Specific Regulation Summary

This Chapter sets out how we will prioritise competition enforcement cases and how we will determine whether to use powers under the Act or use sector specific legislation. 

## A. Introduction

3.1. 
Our competition enforcement powers operate in parallel to a number of other regulatory tools which we may utilise in discharging our duties as an economic 
regulator. These regulatory tools include: 
 consumer law enforcement powers; 
 licensing powers (both in terms of modifications to licences and the 
enforcement of licence breaches); 
 regulation of access to services and facilities on the rail network, including track 
access and access to stations and light maintenance depots, through the approval of access agreements; and 
 setting the efficient price for delivery of performance and investment in the 
railways and monitoring and enforcing delivery of regulated outputs. 
3.2. 
We have published separate guidance in relation to our licence enforcement 
functions73 and will publish separately our approach to regulating access to services 
and facilities on the rail network. 

## B. Prioritisation Criteria

3.3. 
We apply prioritisation principles to help us focus our resource in a way that will deliver most value from our interventions. When applying the prioritisation principles 
in the context of discharging our concurrent functions under the Act, we will afford 
particular weight to prioritising the protection of consumers and other users of railway services. The weight attached to each of the criteria will also be influenced by our strategic objectives. Otherwise, the criteria below are not ordered by priority or significance. 
3.4. 
Our prioritisation criteria are: 
                                            
 **Strategic significance** - We will consider how our intervention will deliver 
outcomes which are in line with our strategic objectives; for example to secure value for money from the railway, for users and funders. 
 **Is ORR better/best placed to act** - We will examine whether an investigation 
is best carried out by ORR. We work in partnership with a number of concurrent 
competition authorities, most notably through the UKCN. Consideration of this criterion will typically involve determining which regulator is better or best  
placed to investigate according to the factors set out in CMA10 (the 
concurrency guidance)74. 
 **Impact** - An important consideration for us will be the likely impact of our 
intervention. Factors which we will take into consideration in measuring that 
impact include: 
 the actual or potential level of harm (which, depending on the 
circumstances, could be harm to passengers, taxpayers or other users of the railways); 
 evidence to suggest a systemic issue, rather than an isolated incident;  circumstances that suggest conduct that is recurrent and/or on-going;  whether the conduct in question is leading or could lead to inefficiencies in 
the market, either in terms of costs or end prices to consumers; and 
 the likely deterrent effect or any other beneficial effects, such as raised 
awareness amongst consumers. This impact can be in the market in question or in related markets.  
 **Costs** - We will estimate the internal and external costs attached to our 
intervention. The internal costs will include any opportunity costs (for example, knock-on effects on ORR's current and future portfolio of strategic work). It is 
important that the costs of our intervention are proportionate to the impact that 
we are seeking. 
 **Risks** - We will adopt a risk-based approach when assessing whether or not a 
matter constitutes a priority. The risks that we will consider include: 
 
 the probability of a successful outcome particularly in terms of better 
outcomes for taxpayers, passengers or other users of the railways; the legal risks, notably the strength of the evidence available or likely to become available during the investigation; and 
                                            
 the impact of our decisions on our reputation, since credibility plays an 
important role in the overall effectiveness of the regime.  
 
3.5. 
The list of criteria set out above is not exhaustive and we may consider other factors where appropriate. We will keep our prioritisation assessment of any 
particular case under review. 
3.6. 
If we decide not to open an investigation into a matter under the Act on prioritisation grounds, it would nonetheless remain open to the CMA, or any other regulator with concurrent jurisdiction in relation to the matter in question, to take action under the Act, following consultation with us. 

## C. Choice Of Tool

3.7. 
Anti-competitive agreements or abusive conduct in the railways sector may breach conditions or requirements in licence agreements, or may give rise to grounds for us to take action under one, or a range, of our sector specific regulatory powers. 
There are therefore many conceivable circumstances in which we could proceed to address problems or issues that have come to our attention either by way of our powers under the Act or by using our sector specific tools. 
3.8. 
In certain circumstances we are required to give 'primacy' to pursuing enforcement action under the Act. This 'primacy' duty stipulates that we must, before making a final order or confirming a provisional order for the purpose of securing compliance with a licence condition or requirement, consider whether it would be more appropriate to proceed under the Act. We must not make a final order or make or confirm a provisional order if we consider it would be more appropriate to proceed 
under the Act75.  
3.9. 
In practice we will, at an early stage, both in relation to licensing and other matters, 
determine on a case by case basis which tool is most appropriate to deal with the particular issues being raised. The appropriateness of the tool being utilised to address a particular issue will be kept under review at regular stages in enforcement cases.  
3.10. The overriding principle is that we will seek to use the most effective, efficient and 
expeditious solution where an issue is found to exist. In order to make this assessment we will have regard to our prioritisation criteria with particular consideration of: 
 the resource and timing implications of the tool being used;  the potential outcomes which may be achieved; and 
 any other advantages or disadvantages between using particular tools, for 
example potential deterrent effect and establishing case precedent. 

## I. Procedure

3.11. We will endeavour to keep interested parties informed of what powers we are using 
in relation to on-going investigations. If we decide midway through an investigation 
to investigate under different powers, we will write to all parties involved and explain our reasons for switching between powers.  
3.12. We will inform the CMA of all cases which we could have taken under the Act, even 
if ultimately we decide to deal with the case under sector specific legislation. 

## D. Inter-Relationship With Sector Specific Regulation I. Safety

3.13. Alongside our economic functions we also regulate health and safety for the entire 
mainline rail network in Great Britain, as well as the London Underground, light rail, 
trams and the heritage sector. As well as giving advice to the industry, we also have 
a range of formal enforcement powers given to us under the Health and Safety at 
Work etc. Act 197476. 
3.14. In cases raising issues relating to safety, for instance where compliance with health 
and safety law is raised as a possible justification for otherwise anti-competitive conduct, we will draw upon our expertise of enforcing health and safety law in a 
railway context.  
3.15. In considering arguments that otherwise anti-competitive conduct is justified on 
health and safety grounds, we will take into account that it is usually for public 
authorities to set and enforce public health and safety standards. It is not the task of 
undertakings to take steps on their own initiative to exclude products or services which they regard, rightly or wrongly, as dangerous or inferior to their own or 
alternatives77.  

## Ii. Eu Railway Packages

3.16. The European Commission has recognised that differing frameworks and technical 
and operational standards across Member States can create barriers to competitive entry, which can frustrate the policy of liberalisation of rail markets in the EU. It has therefore enacted a number of railways packages which have been transposed into 
 
UK law to establish sector specific tools aimed at liberalising railway markets and harmonising standards across Member States 78.  

3.17. An example of a measure adopted under the railways packages is Directive 
2012/34/EU (the **Directive**)79 which has the objective of strengthening further the 
governance of railway infrastructure, thereby enhancing the competitiveness of the 
railways sector vis-à-vis other modes of transport. When implemented into UK law80 
the Directive will give us powers (exercisable on our own initiative) to monitor the competitive situation in rail services markets and control arrangements for access to rail infrastructure and services. Guidance on our approach to monitoring and reviewing markets is being produced separately; we are also preparing guidance in 
relation to how we will discharge our functions in relation to access to 
infrastructure81. 

## Chapter 4 - Conduct Of An Investigation Summary

This Chapter sets out how we expect to conduct investigations under the Act, and explains the possible outcomes of investigations. 

## A. Introduction

4.1. 
In conducting investigations under the Act we are required to follow the procedural 
rules set out in the CMA Rules. We will also have regard to the CMA's guidance on 
investigation procedures82. This guidance is intended to be a supplement to those 
documents and explain our particular approach to conducting investigations under the Act. 

## I. Transparency And Proportionate Use Of Powers

4.2. 
We aim to exercise our functions in a transparent manner. As such we aim to ensure that appropriate information is provided on our decision making process and 
that we are open and accessible to affected stakeholders. This applies throughout 
the course of any investigation which we undertake. Interested parties are encouraged to make representations to us at appropriate times during the course of investigations and otherwise engage with us so as to assist our decision making in cases. 
4.3. 
We are committed to carrying out our investigations and making decisions in a procedurally fair, transparent and proportionate manner. 

## Ii. The Procedural Officer

4.4. 
Parties who are aggrieved by any procedural step we take during our investigations have recourse to a procedural complaints process. Such complaints are determined 
by a Procedural Officer83. 

## B. Opening An Investigation

4.5. 
In order to open an investigation we must have reasonable grounds for suspecting that at least one of the competition prohibitions is being infringed, or has been 
infringed at some time in the past84 (the '**Reasonable Suspicion**' test). 
Chapter 15 
4.6. 
We may launch an investigation under the Act in response to a complaint made or 
information supplied by a customer, a competitor, a party to a possible infringement (for example a leniency applicant), or another third party (for example, a whistleblower). Details of how to make a complaint about a possible infringement of the 
competition prohibitions are set out on our website85.  
4.7. 
We may also decide to investigate a possible breach on our own initiative, for example following a market review or other research undertaken by us.  
4.8. 
Designated consumer bodies86 may make 'super-complaints' to sectoral regulators, 
where there are or appear to be market features that may be significantly harming 
consumers. A super-complaint may be made to us in relation to the rail industry. 
We will have 90 calendar days to respond to a super-complainant stating whether 
we will take action and what that action is likely to be. Only designated consumer 
bodies can make a super-complaint87.  

## I. Formal Complainant Status

4.9. 
We will grant formal complainant status to any person who has submitted a written, reasoned, complaint to us and whose interests are likely to be materially affected by the subject matter of the complaint. Formal complainants will have the opportunity to be involved in key stages of the case and, where appropriate, will be kept updated in writing and orally about the status of the investigation. 
4.10. Individuals who make complaints but do not wish to have formal complainant status 
should inform us of this in writing. We will typically withdraw formal complainant status in response to such requests.     

## Ii. Initial Enquiry Phase

4.11. In appropriate cases we may undertake an 'initial enquiry phase' in order to 
determine whether the threshold for opening an investigation is met. Any resources dedicated to an initial enquiry phase will be proportionate and commensurate with our continued assessment of the merits of the case and its likelihood of ultimately 
constituting an administrative priority for ORR88.  
                                                                                                                                                   

## 84 Section 25 Of The Act

85 http://orr.gov.uk/what-and-how-we-regulate/competition/competition-issues/how-to-complain-undercompetition-law  

 86 Entities designated as consumer bodies include: the Consumer Association; National Consumer Council; 
Citizens Advice; Energywatch; Consumer Council for Water; Postwatch; CAMRA and General Consumer Council for Northern Ireland 
 87 Further guidance on super-complaints is available in OFT514, Super-complaints, (July 2003) 
https://www.gov.uk/government/publications/how-consumer-bodies-can-make-super-complaints  
 88 See 'Prioritisation Criteria' above 
 
4.12. The initial enquiry phase may include engaging further with complainants, and, 
where there is minimal risk of any future investigation being jeopardised, may involve engaging with third parties and the party(ies) who may have committed an 
infringement. We may make informal requests for information at this stage; however, as our formal information powers under the Act are not engaged prior to 
the opening of an investigation, parties are not required by law to respond to our requests.  
4.13. Where there is more than a minimal risk of any prospective investigation being 
jeopardised, for example where we would expect to utilise our powers to conduct a site inspection in order to obtain evidence which otherwise might be destroyed or 
difficult to obtain, we will not engage in any initial enquiries with third parties or the 
party(ies) who may have committed an infringement. 

## Iii. Informing The Cma And The European Commission

4.14. If we determine, in relation to any matter, that the Reasonable Suspicion test is met, 
we will inform the CMA within 7 workings days in order to commence the case allocation procedure. We will inform the CMA of each case which we consider meets the threshold for opening an investigation. 
4.15. We will inform the European Commission if we open an investigation involving the 
application of Article 101 and/or Article 102 TFEU89. If we have already opened an 
investigation, the European Commission will consult us before exercising its power 
to take over the investigation90. 

## Vi. Communication With Parties

4.16. If we decide to open an investigation under the Act, we will generally send the 
businesses under investigation a case initiation letter setting out brief details of the 
conduct which we are investigating, the relevant legislation, our indicative proposed timescale, and our relevant contact details. 

## V. Warning Letters

4.17. In some cases we may consider it appropriate to deal with suspected infringements 
of competition law which do not constitute an administrative priority for ORR by 
issuing a warning letter. A warning letter will set out, amongst other things, that we have been made aware of a possible breach of competition law and although we are not currently minded to pursue an investigation at that stage, we may do so in future if we receive further evidence of a suspected infringement or if our prioritisation assessment changes. 
                                            

## C. The Case Team And Decision Making

4.18. We will assemble a case team to conduct the investigation, which is likely to consist 
of a case officer, lawyers, economists and others with the necessary expertise from across ORR, depending on the issues raised by the matter being investigated. For 
example, in cases involving access issues or those raising issues about safety we 
may include specialists from those areas of ORR within the case team, or ensure that the case team draws upon their experience as appropriate. 
4.19. Each case team will always include a Senior Responsible Officer (SRO), the identity 
of whom will be notified to the parties as soon as practicable. During the course of 
the investigation, the SRO will have the responsibility of taking decisions in relation 
to whether: 
 there is sufficient evidence to issue a Statement of Objections; 
 to close the case on the grounds of administrative priorities; 
 to make an interim measures direction; 
 to accept commitments offered by a party under investigation; and 
 the case is appropriate for settlement.  

## D. Keeping Parties Informed I. Publishing A Timetable

4.20. We will publish indicative timetables for on-going investigations on our website. We 
will update case timetables where changes occur during the course of investigations. We will also, where possible and subject to the confidential nature of 
cases, provide broad details of the nature of the case under investigation.  

## Ii. Communication With Parties

4.21. The amount and frequency of communications with the party under investigation will 
vary depending on a number of factors, including the number of parties under investigation, the extent to which they co-operate with us and the complexity of the 
conduct under investigation. 
4.22. Typically we will, as a minimum, hold 'state of play' meetings at appropriate points 
with each party under investigation. The proposed estimated dates of state of play meetings will be included on our published timetables. The first state of play meeting will usually take place soon after an investigation is opened. 
4.23. State of play meetings are an opportunity for those being investigated to meet with 
the case team and the SRO. In state of play meetings we will keep each party informed of the stage the investigation has reached and provide information on the 
next steps in the investigation and proposed timings. We will provide as much information as possible to parties under investigation as is appropriate, bearing in mind any restrictions due to confidentiality and market sensitivity. We will endeavour, where it is appropriate to do so, to appraise parties of our preliminary thinking in relation to key aspects of the matter being investigated. 

4.24. In addition to state of play meetings, we will provide, as appropriate, additional 
updates to parties under investigation either by telephone or in writing. 

## Iii. Communication With Complainants

4.25. Complainants will not, as a matter of course, be offered formal state of play 
meetings. We would expect however to provide regular updates to complainants 
either by telephone or in writing where it is appropriate to do so. 

## E. Information Gathering And Sharing I. Information Gathering Powers Under The Act

4.26. Once we have opened an investigation under the Act91 we have a number of formal 
information gathering powers. Further detail on our information gathering powers is 
set out in the CMA's guidance92. In summary, under the Act our information 
gathering powers include that we: 
 can issue requests for information and documents (commonly referred to as 
section 26 notices); 
 can conduct compulsory interviews with any individual connected to a business 
under investigation; and 
 have the power to enter business and domestic premises, require the 
production of documents and take copies of documents. Such entry may be either with or (for business premises) without a warrant. If we have received a warrant, we may search for and seize documents. 
4.27. The CMA's guidance describes the limits on its information gathering powers under 
the Act93. These limits also apply to us. As such we: 
 cannot require the production or disclosure of privileged communications; and  cannot force a business to provide answers that would require an admission 
that it has infringed the law. 

## Ii. Use Of Information Gathered Under The Sector Specific Powers

4.28. There may be circumstances in which information gathered using our sector 
specific powers may be utilised for the purposes of enforcing the competition prohibitions; though once we have launched an investigation under the Act (or 
transferred a case for enforcement under the Act), we would expect to use our 
powers under the Act. 
4.29. Our information gathering powers under sector specific legislation are primarily 
contained in the Railways Act, or are otherwise governed by its provisions. There are restrictions on the disclosure by ORR of information it has obtained under or by virtue of the Railways Act and which relates to the affairs of a business or an individual unless consent for such disclosure has been obtained from that business 
or individual. However, the Railways Act94 does permit disclosure for the purpose of 
facilitating the carrying out by ORR of any of its functions under the Railways Act and the Transport Act 2000, including our concurrent competition powers. Therefore we can use or disclose information gathered under the Railways Act to facilitate our 
functions under the Act.  
4.30. Similarly, Part 9 of the Enterprise Act restricts disclosure of information which has 
been obtained under the Act95 if such information relates to the affairs of any 
individual or to any business of an undertaking, unless a relevant statutory gateway 
is available - for example, the individual or business concerned gives its consent96 
or the disclosure is made for the purpose of facilitating the performance of any 
function ORR has by virtue of any enactment97. It is possible for information 
obtained by us in the course of an investigation under the Act to be disclosed by us 
to facilitate our regulatory functions under the Railways Act98.  
4.31. Before making any such disclosure, we must have regard to three considerations99: 
 the need to exclude from disclosure (so far as practicable) any information 
whose disclosure we think is contrary to the public interest; 
 the need to exclude from disclosure (so far as practicable): 
 97 Section 241(1) of Enterprise Act 
 98 Under Schedule 15 of the Enterprise Act, which lists both the Act and the Railways Act as enactments 
conferring functions 
 99 Section 244 of the Enterprise Act 
 commercial information the disclosure of which we think might 
significantly harm the legitimate business interests of the undertaking to which it relates; or 
 information relating to the private affairs of an individual the disclosure of 
which we think might significantly harm the individual's interests; and 
 the extent to which the disclosure of the information is necessary for the 
purpose for which we are permitted to make the disclosure.   

## Iii. Freedom Of Information Act

4.32. The Freedom of Information Act 2000 (**FOIA**) gives any person the right to request 
non-published information from us, as a public authority. We, as an organisation, are committed to openness and transparency; however, we recognise that we will 
obtain information in the context of competition investigations that should not be widely disclosed, or in some circumstances not disclosed at all.  
4.33. Where information obtained by us in the course of investigations made under the 
Act falls within the prohibition on disclosure contained in Part 9 of the Enterprise Act, such information would be exempt from disclosure under section 44 of the FOIA. This provides that where the disclosure of information is "prohibited by another enactment" it is considered exempt information for the purposes of the 
FOIA100. 
4.34. We might also seek to rely on other absolute or qualified exemptions contained 
within the FOIA, including: 
 
section 31(1)(g) of the FOIA, which allows us to withhold information if we 
consider that its disclosure would, or would be likely to, prejudice our 
ability to exercise our statutory functions for the purposes set out at 
section 31(2) of the FOIA. This is a qualified exemption and is subject to a test of whether, in all the circumstances, the public interest in maintaining the exemption outweighs the public interest in disclosing the information; 
and 
 
section 32 of the FOIA, which provides an absolute exemption where the 
requested information is held by a public authority in a document placed in the custody of a person conducting an inquiry, for the purposes of that inquiry.  

## Iv. Exchange Of Information And Restrictions On Use Of Information

4.35. As a designated NCA we are required to carry out our EU competition law functions 
in close cooperation with our European competition partners101. We may, for 
instance, share confidential information with the European Commission and NCAs 
of other Member States102. Prior to sharing any information in accordance with this 
obligation we will have regard to the provisions in Part 9 of the Enterprise Act103. 
4.36. NCAs of Member States, when applying Articles 101 and 102, are permitted to 
provide each other with, and use in evidence, any matter of fact or law (including 
confidential information)104. The information may only be used as evidence in the 
application of Articles 101 or 102 TFEU105 and in respect of the specific 
investigation for which it was collected by the original NCA. Information gathered 
from another member of the ECN during the course of an investigation under the Act enjoys a similar degree of protection and therefore should not be used for any other purpose.  
4.37. The exchange of information between ORR and the CMA is permitted both for the 
purpose of determining who has jurisdiction to exercise functions under the Act106 in 
relation to a case under the Act and/or EU law, and generally for the purpose of 
facilitating the performance by us of our concurrent competition functions107.  

## V. Penalties For Non-Compliance

4.38. We may impose penalties if parties fail to comply with our information gathering 
powers without reasonable excuse108. In determining whether to proceed, we will 
follow the CMA's policy on administrative penalties109. In addition, it is a criminal 
 101 Article 11(1) of Regulation 1/2003 
 102 Article 12(1) and (2) of Regulation 1/2003. Information shared under this provision may only be used by 
the recipient NCA for the purposes of applying the EU competition prohibitions. However if national 
competition law is applied in parallel to the EU prohibitions, and does not lead to a different outcome, the 
information may also be used for the purposes of applying national competition laws. Further guidance on the operation of information sharing within the ECN is set out in the Commission Notice on cooperation within the Network of Competition Authorities (OJ 2004 C 101 p.3) 
 103 Notably the considerations in section 244 of the Enterprise Act 
 104 Article 12 of Regulation 1/2003 
105 Or national competition law, subject to the criteria at footnote 104 above 

 106 Namely, Part 1 functions which are any functions under the Act which are or would be exercisable 
concurrently (see the definition in regulation 2 of the Concurrency Regulations). 
 107 Regulation 3 and 9 of the Concurrency Regulations; CMA10 paragraphs 3.41 to 3.62; and, the 
Memorandum of Understanding paragraphs 37 to 48 
 108 Section 40A of the Act 
 
offence to provide false or misleading information, or to destroy, falsify or conceal documents (subject to certain statutory conditions110).  

## F. Interim Measures

4.39. We have the power to require a party to comply with temporary directions, called 
'interim measures', where an investigation has been started but not yet concluded 
and we consider it necessary to act urgently either to prevent significant damage to 
a person or category of persons, or in order to protect the public interest111.  
4.40. We can impose interim measures on our own initiative or in response to a request 
to do so. If a person wishes to make an interim measures application, they should contact the case team leader and provide sufficient information to demonstrate the 
need for interim measures.  
4.41. In considering an application for interim measures we will follow the procedure 
outlined in the CMA's guidance112 which outlines rights for representations to be 
made by applicants and the party against whom an interim measure is sought. Each application will be assessed on a case by case basis, with determinations made by the SRO. In determining whether or not to impose interim measures in any particular case we will seek to ensure that: 
 any interim measures are imposed only where specific conduct or behaviour is 
identified which we consider is causing or is likely to cause significant 
damage113 to a particular person or category of person, or is likely to be 
contrary to the public interest; and 
 any interim measures prevent, limit or remedy the significant damage identified 
by ORR and are proportionate to address any significant damage which is 
being caused or is likely to be caused. 

## G. Possible Outcomes Following Investigations

4.42. There are a number of possible outcomes which may arise following an 
investigation. Each of these possible outcomes is addressed below.  

## I. Issue A Statement Of Objections

4.43. If the SRO reaches the provisional view that the conduct under investigation 
amounts to an infringement of competition law, the SRO can decide to issue a Statement of Objections to each business under investigation.  
4.44. We will generally follow the CMA's approach in relation to the issue of a Statement 
of Objections114. We will normally announce the issue of a Statement of Objections 
on our website and on the Regulatory News Service. However depending on the circumstances of the case and any market sensitivities, we may vary the extent of publication or decide not to announce the issue of the Statement of Objections.  
4.45. The Statement of Objections sets out our provisional view based on our legal and 
economic assessment of the case. It also sets out our proposed next steps, and gives the business under investigation an opportunity to know the full case against it and to respond formally in writing and orally. The processes to be followed and possible outcomes following a Statement of Objections are set out in Chapter 5, below. 

## Ii. Closing A Case On The Grounds Of Administrative Priorities

4.46. At any time before or after issuing a Statement of Objections, the SRO may decide 
that a formal investigation no longer merits the continued allocation of resources. At 
regular intervals throughout an investigation the merits of continuing the case will be assessed against our prioritisation principles.  
4.47. If the SRO decides that a case no longer constitutes an administrative priority, we 
will inform the business under investigation as well as any formal complainants in writing and set out our reasons for not taking forward the investigation. We will give 
formal complainants an opportunity, usually within two to four weeks, to submit 
representations and any additional information. Businesses under investigation will also be allowed the same time frame to submit representations.  
4.48. After considering any representations and further evidence received, the SRO will 
reach a view on whether to close the case. If the SRO decides to close the case on 
the grounds of administrative priorities, we will inform the business under investigation. In appropriate cases we may issue a warning letter stating that 
although we are not minded to pursue the investigation further at the current time, 
we may pursue an investigation in the future. We will always reserve the right to keep our prioritisation decisions under review. 
4.49. A decision to de-prioritise a case by us is not binding on other competition 
authorities (e.g. the CMA and the European Commission). Other competition 
authorities with the requisite jurisdiction may wish to undertake an investigation in relation to a matter otherwise deprioritised by us. 

## Iii. Issuing A No Grounds For Action Decision

4.50. If the SRO considers that there is insufficient evidence of a competition law 
infringement the SRO may issue a decision that there are no grounds for action. In 
such a case, we will provide a non-confidential provisional version of our proposed 
'non-infringement' decision to any formal complainant(s). We will invite representations from any formal complainants within a time frame of two to four 
weeks. We will consider any representations made before proceeding to make a non-infringement decision or not. 

## Iv. Accepting Commitments On Future Conduct

4.51. The SRO may accept commitments from one or more businesses for the purposes 
of addressing the competition concerns that we are investigating in a particular 
case115. Commitments may be offered at any time during a case116; however, the 
SRO is less likely to exercise their discretion to accept commitments the further a 
case has progressed.  
4.52. Commitments constitute binding promises from a business in relation to its future 
conduct. We will follow the CMA's guidance on the circumstances in which it is 
appropriate to accept commitments117. 
4.53. If the SRO accepts commitments we will discontinue our investigation and we 
cannot make a final decision or give a direction118. However, we can continue the 
investigation, make a decision or give a direction if we have reasonable grounds: 
 to believe that there has been a material change of circumstances since the 
commitments were accepted; 
 to suspect that a business has not adhered to the commitments it has accepted; 
or 
 to suspect that the information that led us to accept the commitments was 
incomplete, false, or misleading in a material particular. 
4.54. We will give notice of any proposal to accept commitments and allow at least eleven 
working days for interested parties to give their views on the proposed commitments. Where appropriate, we will have a meeting with each business that 
offered commitments to inform them of the general nature of responses received. If necessary we will indicate whether we consider that changes are required to the commitments before we would consider accepting them. If the parties offering commitments offer material modifications to the proposed commitments, we will allow interested third parties a further period of at least six working days in which to comment on the modified commitments.  

4.55. The SRO will make the decision as to whether to accept commitments. Once 
accepted we will publish the commitments, and a decision explaining our reasons 
for accepting commitments, on our website.  

## V. Informing The Cma And The European Commission

4.56. We will share a draft notice, decision or copy of commitments with the CMA and 
any other competition authority with concurrent jurisdiction prior to:  
 issuing a Statement of Objections;  
 making a decision or publishing a notice of intention to accept commitments; 
 issuing an infringement decision;  
 issuing a non-infringement decision; or 
 making any decision not to proceed with an investigation (including on 
administrative priority grounds119. 
4.57. We will allow concurrent regulators ten working days to provide comments on the 
relevant documents shared with them. We will take into account any comments provided before reaching any final determination. 
4.58. We will also, no less than 30 days before the adoption of a decision accepting 
commitments, inform the European Commission and provide sufficient information 
for the European Commission to assess the case120. We will take into account any 
comments provided by the European Commission before making any final determination. 
                                            

## Chapter 5 - After A Statement Of Objections Summary

This Chapter sets out the procedure we will follow in cases where we have issued a Statement of Objections and our approach to determining appropriate outcomes. 

## A. Right To Reply

5.1. 
Businesses who receive a Statement of Objections have the opportunity to exercise 
their rights of defence (otherwise known as the 'right to reply'). The stages in this process and the approach we will take to allow parties to exercise this right are set 
out below. 

## I. Appointment Of A Case Decision Group

5.2. 
The right to reply involves the opportunity to make oral and written representations 
to a case decision group (CDG). This group consists of at least two expert 
individuals who were not part of the original case team, to be appointed by ORR's 
Board on a case by case basis121. The role of the CDG is to scrutinise the case as 
set out in the Statement of Objections and to carefully consider and take into 
account any representations made by businesses alleged to have infringed/be infringing the competition prohibitions. Parties will be informed of the identities of CDG members when they are appointed. 
5.3. 
The CDG may receive advice and assistance from the original case team but will make its determination independently. 

## Ii. Access To The File

5.4. 
After issuing a Statement of Objections to a business we will give it a reasonable 
opportunity (typically six to eight weeks) to inspect the disclosable documents which we have on our case file and which relate to the matters referred to within the 
Statement of Objections. We will follow the CMA's guidance in relation to access to 
the file122. We will exclude from disclosure certain confidential information and 
internal documents. We may also exclude routine administrative documents from 
the file, for example correspondence setting up meetings.  
5.5. 
We will comply with the provisions in Part 9 of the Enterprise Act 2002 when considering what information is confidential and/or whether it is appropriate for such 
 
information to be disclosed for the purposes of facilitating our functions under the Act. We consider123 that confidential information is: 

 commercial information, disclosure of which might significantly harm the 
legitimate business interests of the undertaking to which it relates; 
 information relating to the private affairs of an individual, disclosure of which 
might significantly harm the individual's interests; or 
 information, disclosure of which would be contrary to the public interest. 
5.6. 
In order for us to determine what information is confidential, it is our policy to 
request that third parties who provide information to us indicate which parts of that 
information they consider to be confidential, in line with the above criteria. We have discretion, even where third parties have claimed confidentiality, to disclose such 
information if we consider that it is necessary to do so in the exercise of our powers under the Act. Requests to restrict disclosure of confidential information should therefore be supported by reasoned arguments as to what harm would ensue from its disclosure and why.  
5.7. 
We will consider representations on confidentiality from affected parties and assess 
the merits of each case put before us, following the procedure in the CMA Rules124. 
If we propose to disclose confidential information provided by a person, we will inform that person of the proposed disclosure and give them a reasonable opportunity to make representations on the proposed action. We will typically not accept blanket requests for confidentiality (i.e. confidentiality over an entire document, or part of it) and may request that parties specifically redact parts of documents which they consider to be confidential.  
5.8. 
Depending on the nature of the information to be disclosed, we may make use of 
electronic disclosure techniques, or, where appropriate, utilise data rooms to effect access to file. The arrangements for disclosure of information will be assessed on a case by case basis. 

## Iii. Written Representations

5.9. 
Recipients of a Statement of Objections will have an opportunity to make written 
representations. We would expect to give parties between eight to twelve weeks to respond to the Statement of Objections, depending upon the complexity of the case. We will ask for a confidential and a non-confidential version of their 
representations125.   
                                            
5.10. We may give formal complainants and third parties, who may be able to assist with 
the CDG's assessment of the case, an opportunity to submit written 
representations. In order to facilitate that process we will provide them with a nonconfidential version of the Statement of Objections or the particular part on which 
we are seeking their representations, not usually including annexed documents. 
Any documents disclosed in this regard should be used solely for the purpose of providing representations to us and should not be disclosed to other third parties. 

## Iv. Oral Hearings

5.11. The CDG will invite the parties under investigation to attend an oral hearing to 
discuss the matters set out in the Statement of Objections. If appropriate, formal 
complainants may also be invited to attend and make representations at oral 
hearings. Hearings will be attended by members of the case team as well as the 
CDG.  
5.12. The hearing will be conducted by a duly appointed Procedural Officer. 5.13. We will agree with the party under investigation an agenda for any oral hearing in 
which it is involved in advance of the hearing. The party under investigation will have an opportunity to highlight to the CDG directly any issues of importance to its case, and to clarify the detail set out in its written representations. Although it is helpful to us if the party under investigation answers the questions raised in the oral hearing, there is no obligation to do so and it is possible to respond to questions in writing following the hearing. A transcript of the hearing will be taken.  
5.14. Following the oral hearing, the Procedural Officer will report to the CDG indicating 
any procedural issues that have been brought to the attention of the Procedural Officer during the investigation and an assessment of the fairness of the procedure 
followed during the oral hearing126. 

## C. Steps Following Oral Hearings

5.15. Following an oral hearing, the CDG will consider the Statement of Objections and 
the representations which have been submitted in writing and orally. It may then take any or all of the steps set out below. 

## I. Letter Of Facts

5.16. If the CDG receives new evidence supporting the objections contained in the 
Statement of Objections, and the CDG intends to rely on it to establish an 
infringement, it will put the new evidence to the addressee of the Statement of 
Objections in a 'Letter of Facts' and allow time for it to respond.  

## Ii. Supplementary Statement Of Objections

5.17. If the CDG receives new information in response to the Statement of Objections 
which indicates that there is evidence of a different suspected infringement from that set out in the Statement of Objections, or that there is a material change in the 
alleged infringement, the CDG will issue a 'Supplementary Statement of Objections' setting out the new facts on which is proposes to rely, and giving the addressee an 
opportunity to respond in writing and orally, and to inspect the new documents127.  

## Iii. Draft Penalty Statement

5.18. If the CDG is considering reaching an infringement decision and imposing a 
financial penalty on a party, it will provide that party with a draft penalty 
statement128, which will set out the key aspects relevant to the calculation of the 
proposed penalty, based on the information available to it at the time. Parties will be 
given an opportunity to comment on the draft penalty statement in writing and to attend a further oral hearing with the CDG. 

## D. Possible Decisions

5.19. Following consideration of the Statement of Objections and the representations 
received, the CDG will decide to either issue an infringement decision or a decision 
that there are no grounds for action.  

## I. Infringement Decision

5.20. If the CDG issues an infringement decision, it will set out the facts on which it relies 
to prove the infringement and the action which it will take. It will also address the material representations made to us during the course of the investigation. The 
infringement decision may impose a financial penalty129 and may issue directions to 
bring the infringement to an end130. If a party then fails to comply with our 
directions, we may seek a court order to enforce the directions131. 
5.21. We would normally issue a press announcement regarding an infringement decision 
and make an announcement on the Regulatory News Service. We will also publish a summary and a non-confidential version of the infringement decision.  

## Ii. No Grounds For Action

5.22. If the CDG does not find sufficient evidence of a breach of competition law, it will 
consult any formal complainant. Following any such consultation, the CDG may decide to close the case.  
5.23. We would expect to follow the same procedure as for issuing an infringement 
decision, in terms of publication and announcements.  

## E. Sanctions For Infringement I. Penalties

5.24. If we find an infringement of competition law we may impose a penalty on the 
infringing undertaking(s). The infringement decision will explain how the CDG 
decided on the appropriate level of penalty, having taken into account our statutory 
obligations in fixing a financial penalty132 and the parties' written and oral 
representations on the draft penalty calculation. 
5.25. We will follow the CMA's penalty guidance when setting the amount of a penalty133.  

## Ii. Settlements

5.26. In the context of enforcement cases under the Act, settlement is the process 
whereby a business under investigation is prepared to admit that it has infringed competition law and confirms that it accepts that a streamlined 'right to reply' 
procedure will govern the remainder of the investigation of that business's conduct 
in return for a reduction in its financial penalty. 
5.27. We will retain a broad discretion in determining which cases are appropriate for 
settlement. Businesses do not have a right to settle in any given case. We will 
follow the CMA's guidance in relation to: determining which cases are appropriate for settlement; the procedure to be followed in settlement cases; and calculating discounts from financial penalties/granting immunity from sanctions such as 
competition disqualification orders134. 
5.28. A party wishing to settle will have to admit liability in relation to the nature, scope 
and duration of its infringement, immediately cease the infringing behaviour and 
refrain from engaging in the same or similar infringing behaviour. A party wishing to 
settle will also have to accept that there will be a streamlined administrative process for the remainder of the investigation, including streamlined access to file 
arrangements and a streamlined process for making representations. A settling party will have to accept that there will be an infringement decision against it, and that such a decision will remain final and binding135. 

## Iii. Voluntary Redress Schemes

5.29. Both we and the CMA are empowered to approve certain voluntary redress 
schemes136. 
5.30. Approved voluntary redress schemes are a form of alternative dispute resolution. 
Where a business offers a redress scheme, those affected by the infringement are able to claim compensation through such a scheme without the need to pursue 
litigation in the courts. 
5.31. In cases relating to the provision of services relating to railways, where there is no 
pre-existing investigation, a person (which may include more than one undertaking 
applying jointly) who has infringed competition law may apply to ORR or the CMA 
for approval of a voluntary redress scheme. When either authority proposes to exercise these powers, pursuant to the Concurrency Regulations, it shall liaise with 
the other authority as appropriate. 
5.32. Where potential applications for approval of a scheme relate to a pre-existing 
decision of ORR or to an on-going ORR investigation, applications for approval should be made to ORR. Similarly, where proposed schemes relate to a preexisting decision or to an on-going investigation of another UK competition 
authority, applications should be made to that authority.  
5.33. If a potential scheme relates to a pre-existing decision of the European 
Commission: 
 
where the product or service concerns the supply of services relating to 
railways, applicants should apply for approval to ORR in the first 
instance. 
 
where the product or service does not concern the supply of services 
relating to railways and does not relate to an industry over which 
another regulator has concurrent powers only the CMA will have 
jurisdiction to consider scheme approval and applications should be made to the CMA. 
5.34. ORR has discretion whether or not to consider applications for scheme approval. In 
exercising its discretion ORR will have regard to its prioritisation criteria.  
5.35. Applications received by the CMA may be transferred to ORR and applications 
received by ORR may be transferred to either the CMA or another regulator, where 
appropriate. Any such transfer shall have regard to the Concurrency Regulations 
and other relevant rules. 
5.36. Where ORR is deemed to be best placed to deal with an application for approval of 
a voluntary redress scheme (under the Concurrency Regulations and the 
Concurrency Guidance) it will follow the CMA's guidance on the approval of such 
schemes137. 

## Iv. Directions

5.37. If we have made a decision that one of the competition prohibitions has been 
infringed, we may impose directions on the infringing parties which we consider are 
appropriate to bring the infringement to an end. If a party subject to directions fails to comply with them, we may apply to the court for an order requiring the relevant 
party to make good their default. 

## V. Competition Disqualification Orders

5.38. We can make an application to the court for a competition disqualification order to 
be made against any director of a company which we have found to be in breach of 
competition law138. Such an order will be made by the court if it finds that the 
conduct of the director in connection with that breach against whom the order is 
sought makes him unfit to be concerned in the management of a company.  
5.39. Before making such an application, we will give notice to the director concerned and 
give that person an opportunity to make representations139. 

## Vi. Informing The Cma And The European Commission

5.40. We will share a draft copy of any proposed infringement decision with any other 
competition authority with concurrent jurisdiction prior to finalising the decision. We 
will allow concurrent regulators 10 working days to provide comments on the draft infringement decision shared with them. We will take into account any comments 
provided before reaching any final determination. 
5.41. We will also, no less than 30 days before the adoption of a decision requiring that 
an infringement be brought to an end, inform the European Commission and 
 138 Section 9A(10) of the Company Directors Disqualification Act 1986 (CDDA 1986), see OFT510, Director 
disqualification orders in competition cases (June 2010) 
https://www.gov.uk/government/publications/competition-disqualification-orders  
 139 Section 9C of CDDA 1986 
provide sufficient information for the European Commission to assess the case140. 

We will take into account any comments provided by the European Commission before making any final determination. 

 

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