EU AND COMPETITION LAW

ANTI-COMPETITIVE AGREEMENTS

The first of the two principal rules of EU competition law is art.101 of the Treaty on the Functioning

of the European Union (TFEU) (previously art.81 of the EC Treaty, and before that art.85). The

prohibition, and its consequence, are contained in art. 101(1)-(2):

“1. The following shall be prohibited as incompatible with the internal market: all agreements

between undertakings, decisions by associations of undertaking and concerted practice which

may affect trade between Member States and which have as their object or effect the

prevention, restriction or distortion of competition within the internal market, and in

particular those which:

(a) directly or indirectly fix purchase or selling prices or any other trading conditions;

(b) limit or control production, markets, technical development, or investment;

(c) share markets or sources of supply;

(d) apply dissimilar conditions to equivalent transactions with other trading parties,

thereby placing them at a competitive disadvantage;

(e) make the conclusion of contracts subject to acceptance by the other parties of

supplementary obligations which, by their nature or according to commercial usage,

have no connection with the subject of such contracts.

2. Any agreements or decisions prohibited pursuant to this Article shall be automatically void.”

There is a developed jurisprudence on each of the elements of these paragraphs, and in particular, (i)

what is an “undertaking”, (ii) what may amount to an “agreement between undertakings”, a decision

by an association of undertakings, or a concerted practice between undertakings, (iii) the extent and

character of the actual or potential effect on trade which is required, (iv) what qualifies as a

prevention, restriction or distortion of competition, and the market definition required to assess this

question, and (v) the meaning of the words “automatically void”.

Article 101(3) provides for the prohibition in art. 101(1) to be ‘declared inapplicable’, in the case of:

“– any agreement or category of assessments between undertakings,

– any decision or category of decisions by associations of undertakings,

– any concerted practice or category of concerted practices,

which contributes to improving the production or distribution of goods or to promoting

technical or economic progress, while allowing consumers a fair share of the resulting benefit

and which does not:

(a) impose on the undertakings concerned restrictions which are not indispensable to the

attainment of these objectives;

(b) afford such undertakings the possibility of eliminating competition in respect of a

substantial part of the products in question.”

The jurisdiction under art.101(3) to “declare inapplicable” the prohibition contained in art.101(1) has,

since May 1, 2004, been enjoyed by national courts and tribunals, as well as the European Commission

and national competition authorities. This is because, under art.1(2) of Regulation 1/2003, any

agreement, decision or concerted practice which is caught by art.101(1) but which satisfies the

conditions of art.101(3) “...shall not be prohibited no prior decision to that effect being required”. In

other words, art. 101(3) is directly effective, so that if a court or tribunal finds that its conditions are

satisfied, the agreement in question is not unlawful.

There are numerous “block exemptions” which exempt certain categories of arrangement from the

art.101(1) prohibition, by deeming them in advance to comply with the conditions of art.101(3).

The burden of proof in alleging a breach of art.101(1) rests on the party alleging the infringement, but

the burden of proof in demonstrating that art.101(3) is satisfied rests on the undertaking claiming the

benefit of the exemption: Regulation 1/2003, art.2.

Under s.2 of the Competition Act 1998 (the “1998 Act”), there is a very similar prohibition to that

contained in art.101 TFEU, but it applies to agreements which affect trade and distort competition

within the UK, without a need for an effect on trade between Member States of the EU. This

prohibition is known as the “Chapter I prohibition”: see s.2(8) of the 1998 Act.

Abuse of a dominant position

The second of the two principal rules of EU competition law is art.102 TFEU (previously art.82 of the

EC Treaty, and before that Article 86), which provides as follows:

“Any abuse by one or more undertakings of a dominant position within the internal market or

in a substantial part of it shall be prohibited as incompatible with the internal market in so far

as it may affect trade between Member States. Such abuse may, in particular consist in:

(a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading

conditions;

(b) limiting production, markets or technical development to the prejudice of consumers;

(c) applying dissimilar conditions to equivalent transactions with other trading parties,

thereby placing them at a competitive disadvantage;

(d) making 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 some contracts.”

The expression “undertaking” here has the same meaning as in art.101. TFEU. A “dominant position”

means a position of economic strength enjoyed by an undertaking which enables it to prevent

effective competition being maintained on the relevant market by giving it the power to behave to an

appreciable extent independently of its competitors, customers and ultimately of its consumers: Case

27/76 United Brands v Commission [1978] E.C.R. 207, § 65. There is no single test to what may

constitute an “abuse”, but an FCAen cited attempt by the Court of Justice to formulate a rule is the

following:

“The concept of abuse is an objective concept relating to the behaviour of an undertaking in

a dominant position which is such as to influence the structure of a market where, as a result

of the very presence of the undertaking in question is weakened and which, through recourse

to methods different from those which condition normal competition in products or services

on the basis of the transactions of commercial operators, has the effect of hindering the

maintenance of the degree of competition still existing in the market or the growth of that

competition” (Case 85/76 Hoffmann-la-Roche v Commission [1079] E.C.R. 461 § 91).

A prima facie abuse of a dominant position will not contravene Article 102 if the dominant undertaking

is able to show throughout it had an “objective justification” for its conduct (see Case C-52/07 Kanal

5 Ltd v Föreningen Svedska Tonsättares Internationella Msikbyrä (STIM) UPA [2009] 5 C.M.L.R.18 at

§§ 47-48, and the cases there cited) which is proportionate. The initial burden of proof to set up and

evidence a case of objective justification lies with the dominant undertaking: Purple Parking Ltd &

Anor v Heathrow Airport Ltd [2011] EWHC 987; [2011] U.K.C.L.R. 492, §§ 183 to 184, per Mann J.

Section 18 of the 1998 Act contains a similar prohibition to that in art.102 but which applies to the

abuse of a dominant position within the UK or part of the UK, rather than the EU. This prohibition is

known as the “Chapter II prohibition”: see s.18(4) of the 1998 Act.

Prohibition of abuse of a dominant position. The EC Treaty (See the EC Treaty art 82 which is directly

applicable in member states. As to the EC Treaty (i.e. the Treaty establishing the European Community

(Rome, 25 March 1957; TS 1 [1973]; Cmnd 5179)) prohibits any abuse by one or more undertakings of

a dominant position within the common market or in a substantial part of it in so far as it may affect

trade between member states. (EC Treaty art 82). The Treaty itself gives examples of what constitutes

abuse, though it does not provide an exhaustive list (see Case 6/72 Europemballage Corp and

Continental Can Co Inc v EC Commission [1973] CMLR 199, ECJ.)

Undertakings entrusted by a member state with the operation of services of general economic interest

or having the character of a revenue-producing monopoly are subject to the rules of competition

contained in the Treaty (this includes in particular the provisions of the EC Treaty art 82: art 86(2)) in

so far as the application of such rules does not obstruct the performance, in law or in fact, of the

particular tasks assigned to them. (EC Treaty art 86(2). However, the development of trade must not

be affected to such an extent as would be contrary to the interests of the Community: art 86(2). Note

that the Court of Justice has held that art 82 applies only to anti-competitive conduct engaged in by

companies on their own initiative, not anti-competitive conduct required of the companies by national

legislation: see Joined Cases C-359, 379/95P EC Commission and France v Ladbroke Racing Ltd [1997]

ECR I-6265, [1998] 4 CMLR 27, ECJ.)

For the EC Treaty article 82 to be applicable, an undertaking or undertakings must have abused their

dominant position within the common market or a substantial part of it, and the abuse must be likely

to have an effect on trade between member states. The concepts of ‘undertakings’ and ‘an effect on

trade between member states’ have already been discussed in the context of article 81. In relation to

article 82, it is also necessary to consider the following points: (1) what is meant by a dominant

position; (2) whether that position is held in a substantial part of the common market; and (3) what

behaviour is likely to be characterised as abusive.

Dominant position. The EC Treaty article 82 (As to the EC Treaty (i.e. the Treaty establishing the

European Community (Rome, 25 March 1957; TS 1 (1973); Cmnd 5179)) does not define ‘dominant

position’ or lay down any criteria that must be satisfied. It is necessary to look to the judgments of

the courts and the decisions of the European Commission to determine the factors that can lead to a

finding of dominance.

The European Court of Justice has described a dominant position as a position of economic strength

enjoyed by an undertaking which enables it to prevent effective competition being maintained on the

relevant market by affording it the power to behave to an appreciable extent independently of its

competitors, its customers and ultimately of its consumers. Such a position does not preclude some

competition, which it does where there is a monopoly or a quasi-monopoly, but enables the

undertaking which profits by it, if not to determine, at least to have an appreciable influence on the

conditions under which that competition will develop, and in any case to act largely in disregard of it

so long as such conduct does not operate to its detriment. (See Case 85/76 Hoffmann-La Roche & Co

AG v EC Commission [1979] ECR 461, [1979] 3 CMLR 211, ECJ. See also Case 27/76 United Brands Co

v EC Commission [1978] ECR 207, [1978] 1 CMLR 429, ECJ, which lays down a similar test). There are

two elements to the definition: the capacity to prevent effective competition; and having the power

to behave independently. (The connection between the two elements is unclear. It has been

suggested that the essential issue is the ability to act independently: see Case 85/76 Hoffmann-La

Roche & Co. AG v EC Commission [1979] ECR 461, [1979] 3 CMLR 211, ECJ.)

It has been established that article 82 covers both the buying and selling sides of the market. (See e.g.

Case C-95/04 British Airways plc v EC Commission [2007] ECR I-2331, [2007] 4 CMLR 982.)

The market share of an undertaking is not the only factor which must be taken into account when

assessing market power, although very large shares may be evidence of the existence of a dominant

position. There is a rebuttable presumption of dominance where an undertaking has a market share

of 50 per cent or more. It is possible to have a dominant position with a market share of less than 50

per cent.

As well as market share, other factors in determining market power are barriers to expansion and

entry faced by competitors such as statutory monopolies or other legal representation, intellectual

property rights, technological superiority, economies of scale, access to financial resources, vertical

integration and other vertical arrangements, access to raw materials and other resources, advertising

and product differentiation, the maturity of the market, economic performance, market conduct,

predatory pricing and relationships with customers and competitors. Countervailing buyer power

(that is, the extent to which its customers are able to constrain an allegedly dominant undertaking) is

also a factor to be considered.

It is possible for two or more undertakings to be collectively dominant if they are linked in such a way

that they adopt the same conduct on the market, or present themselves or act together as a collective

entity; however, cases of abuse of collective dominance are rare.

A dominant position can exist only in relation to a relevant market and the delimitation of that market

is of essential importance. The relevant market consists of not only the product or services market,

but also the temporal and geographical market.

Abusive behaviour. It is not a contravention of EC competition law simply than an undertaking is

dominant in the whole or part of the common market. (See the EC Treaty art 82. As to the EC Treaty

(i.e. the Treaty establishing the European Community (Rome, 25 March 1957; TS 1 (1973); Cmnd

5170)). For an offence to be committed, the undertaking must have abused the position of

dominance. (See the EC Treaty art 82. A dominant undertaking owes a special responsibility to the

competitive process: see Case 322/81 Nederlandsche Banden-Industrie Michelin v EC Commission

[1983] ECR 3461, [1985] 1 CMLR 282. ‘Superdominant’ undertakings (i.e. undertakings whose

dominance approaches monopoly) owe a greater responsibility; see Cases C-395-396/96P Compagnie

Maritime Belge Transports SA v EC Commission [2000] All ER (EC) 385, [2000] ECR I-1365, ECJ.)

A number of examples of abusive behaviour are given in article 82, namely:

(1) directly or indirectly imposing unfair purchase or selling prices or other unfair trading

conditions (EC Treaty art 82(a). See Case T-340/03 France Telecom SA (formerly Wanadoo

Interactive SA) v EC Commission [2008] All ER (EC) 677, [2007] 4 CMLR 919, CFI (evidence of

predatory pricing amounted to abuse of dominant position).)

(2) limiting production, markets or technical development to the prejudice of consumers (EC

Treaty art 82(b)).

(3) applying dissimilar conditions to equivalent transactions with other trading parties, thereby

placing them at a competitive disadvantage (EC Treaty art 82(c)) and

(4) making the conclusion of contracts subject to the 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 (EC Treaty art 82(d).)

The term ‘abuse’ may also cover practices which affect the structure of the market and so affect

competition (See EC Commission Decision 72/21 (Continental Can Co), 8.1.72, p 25, [1972] CMLR D11;

Case 322/81 Nederlandsche Banden-Industrie Michelin v EC Commission [1979] ECR 461, [1979] 3

CMLR 211.) The categories of abuse are not closed and may include conduct that would be

unexceptional in a non-dominant firm.

A distinction is drawn between exploitative abuses, that is to say the exploiting of customers by

reducing output and increasing prices, and exclusionary abuses, that is to say behaviour aimed at

reducing competition. The European Commission gives priority to exclusionary abuses which are

liable to have harmful effects on consumers, the most common of which are exclusive dealing,

rebates, tying and bundling, predatory practices, refusal to supply and margin squeeze (See

Communication from the Commission – Guidance on the Commission’s enforcement priorities in

applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings (OJ C45,

24.2.2009, p7.)

Defences. If a dominant undertaking (i.e. the EC Treaty art 84. As to the EC Treaty (i.e. the Treaty

establishing the European Community (Rome, 25 March 1957; TS 1 (1973); Cmnd 5179)). The

numbering for the EC Treaty used in this title is as revised by the Treaty of Amsterdam) can show that

its conduct can be objectively justified then the conduct will not be held to be an abuse (i.e. by the EC

Treaty art 81(1) (amended by SI 2004/1261).

Litigation contexts

An allegation of infringement of arts 101 and 102 TFEU, or the Chapter I and Chapter II prohibitions,

may be made in a number of different litigation contexts.

The first such context is regulatory by the European Commission and/or the Office of Fair Trading

(FCA). The Commission and the FCA police the competition rules, and if after investigation they make

a finding of breach, they may impose sanctions for breach, including fines or the imposition of

conditions on future conduct. In certain sectors of the UK economy, sectoral regulators such as the

Office of Communications exercise a parallel regulatory jurisdiction with the FCA in respect of

competition law infringements (the others are the Office of Rail Regulation, the Gas and Electricity

Markets Authority, the Water Services Regulation Authority and the Civil Aviation Authority).

Although the procedures of these regulators are administrative, litigation can result. Decisions by the

Commission may be subjected to review before the EU Courts. Decisions by the FCA and/or the

sectoral regulators may be appealed to the Competition Appeal Tribunal (CAT), or in certain

circumstances by subjected to judicial review.

The second is a free-standing private law action for an injunction, damages or other relief. A breach

of the competition rules is a breach of statutory duty actionable at the suit of any person who has

suffered loss or damage as a result (see e.g. Garden Cottage Foods v Milk Marketing Board [1984] A.C.

130). Such actions must generally be brought in the Chancery Division of the High Court, and

proceedings brought elsewhere will usually be transferred there at an early stage: Civil Procedure

Rules 1998 r.20.8. There is a specialist Practice Direction, which should be consulted: Practice

Direction – Competition Law – Claims relating to the application of arts 81 and 82 of the EC Treaty and

Chapters I and II of Part I of the Competition Act 1998.

The third is a “follow on” damages claim: a claim for breach of statutory duty made in reliance upon a

regulators decision that the competition rules have been infringed. Such claims may be brought in

either the High Court or the CAT, though somewhat different rules apply in each forum. In either

event, the Court or Tribunal is bound by the regulator’s findings of infringement.

The fourth is where competition law is deployed as a so-called “Euro defence”. Competition law may

provide a defendant with a defence to civil proceedings (in any forum) for an alleged legal wrong. The

most obvious example of this is where a claimant seeks to recover sums allegedly due under an anti-

competitive agreement, and the defendant pleads the unenforceability of the agreement (under art.

101(2) TFEU or its domestic equivalent) as a defence (a classic example of such a defence, and of

judicial hostility to such defences, is provided by Dr Andrew James Higgins v Marchant & Eliot

Underwriting Ltd [1996] 2 C.M.L.R. 349 (CA)). There is however a far wider range of circumstances in

which competition law may amount to a defence. Where, for instance, a patent holder owns a patent

in an essential industry standard, he may find infringement proceedings met with a defence alleging

that he is in a dominant position and is obliged to licence the patent to the defendant: see e.g.

Koninklijke Philips Electronics NV v Harvard International Plc [2009] EWHC 1600 (Pat), §§ 4-5, per

Lewison J.

The fifth is in judicial review proceedings invoking the competition rules against the state. Although

arts 101 and 102 TFEU and the Chapter I and II prohibitions are both addressed to undertakings,

Member States owe a general duty to take any appropriate measure to ensure fulfilment of the

obligations arising out of the EU Treaties, and to refrain from any measure which could jeopardise the

attainment of the EU’s objectives: Treaty on European Union (TEU) art. 4(3). This duty means that

Member States may infringe EU law by maintaining in force legislation which could deprive the

completion rules of their effectiveness (Case 13/77 INNO v ATAB [1977] E.C.R. 2115), for instance by

requiring undertakings to conclude an agreement which is contrary to art.101 TFEU (Case C-198/01

Consorzio Industrie Fiammiferi [2003] E.C.R. I-8055, § 16). Furthermore, there is a specific Treaty

obligation upon Member States to refrain from enacting or maintaining in force measures contrary to

the competition rules in the context of public undertakings: art.106(1) TFEU. All of these obligations

are capable of giving rise to judicial review proceedings.

The sixth is in criminal proceedings. Whilst simple price fixing is not a criminal offence at common law

(Norris v United States, [2008] UKHL 16; [2008] 1 A.C. 920), there is a specific “cartel offence” under

s.188 of the 1998 Act. The offence criminalises the conduct of a person who dishonestly enters into

certain categories of anti-competitive agreement. For the elements of the offence, see s.188 of the

1998 Act, and R v George [2010] EWCA Crim 1148; [2010] 1 W.L.R. 2676 CA.

THE CHAPTER II PROHIBITION

The prohibition. Any conduct on the part of one or more undertakings which amounts to the abuse

of a dominant position (In the Competition Act 1998 s.18, ‘dominant position’ means a dominant

position within the United Kingdom: s.18(3). ‘United Kingdom’ means the United Kingdom or any

part of it: s 18(3)) Conduct may, in particular, constitute such an abuse if it consists in:-

1. directly or indirectly imposing unfair purchase or selling prices or other unfair trading

conditions

2. limiting production, markets or technical development to the prejudice of consumers (i.e. EC

Council Regulation 139/2004 (OJ L24, 29.1.2004, p1) (the ‘EC Merger Regulation’))

3. applying dissimilar conditions to equivalent transactions with other trading parties, thereby

placing them at a competitive disadvantage

4. making 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 the contracts

This prohibition is referred to as the ‘Chapter II prohibition’. The Chaper II prohibition does not apply

to certain excluded cases.

The Office of Fair Trading (the ‘FCA’) has published numerous Guidelines on the operation of the Act.

THE FINANCIAL CONDUCT AUTHORITY (“FCA”)

Power of the FCA to investigate. The FCA may conduct an investigation in any of the following cases

(Competition Act 1998 s 25(1) (s.25 substituted by SI 2004/1261):

(1) where there are reasonable grounds for suspecting that there is an agreement which may

affect trade within the United Kingdom and which has as its object or effect the prevention,

restriction or distortion of competition with the United Kingdom. (Competition Act 1998 s

25(2) (as substituted). Section 24(2) does not permit an investigation to be conducted in

relation to an agreement if the FCA: (1) considers that the agreement is exempt from the

Chapter I prohibition as a result of a block exemption or a parallel exemption; and (2) does

not have reasonable grounds for suspecting that the circumstances may be such that it could

exercise its power to cancel the exemption: s 25(8))

(2) where there are reasonable grounds for suspecting that there is an agreement which may

affect trade between member states and which has as its object or effect the prevention,

restriction or distortion of competition within the European Community (Competition Act

1998 s 25(3) (as substituted). Section 25(3) does not permit an investigation to be conducted

if the FCA: (1) considers that the agreement is an agreement to which the prohibition in the

EC Treaty art 81(1) is inapplicable by virtue of a regulation of the European Commission (the

‘relevant regulation’); and (2) does not have reasonable grounds for suspecting that the

conditions set out in EC Council Regulation 1/2003 on the implementation of the rules on

competition laid down in Articles 81 and 82 of the Treaty (OJ L1, 4.1.03 p1) (the ‘Modernisation

Regulation’) art 29(2) for the withdrawal of the benefit of the relevant regulation may be

satisfied in respect of that agreement: Competition Act 1998 s 25(9) (as substituted).

(3) where there are reasonable grounds for suspecting that the Chapter II prohibition has been

infringed;

(4) where there are reasonable grounds for suspecting that the prohibition on abuse of a

dominant position in the EC Treaty has been infringed

(5) where there are reasonable grounds for suspecting that, at some time in the past, there was

an agreement which at that time may have affected trade within the United Kingdom and had

as its object or effect the prevention, restriction or distortion of competition within the United

Kingdom (Competition Act 1998 s 25(6) (as substituted). Section 25(6) does not permit an

investigation to be concluded in relation to any agreement if the FCA considers that, at the

time in question, the agreement was exempt from the Chapter 1 prohibition as a result of a

block exemption or a parallel exemption: s25(10) (as substituted). It is immaterial for the

purposes of s 25(6) or s 25(7) whether the agreement in question remains in existence.)

(6) where there are reasonable grounds for suspecting that, at some time in the past, there was

an agreement which at that time may have affected trade between member states and had

as its object or effect the prevention, restriction or distortion of competition within the

European Community (Competition Act 1998 s 25(7) (as substituted). Section 25(7) does not

permit an investigation to be conducted in relation to any agreement if the FCA considers that,

at the time in question, the agreement was an agreement to which the prohibition in the EC

Treaty art 81(1) was inapplicable by virtue of a regulation of the European Commission:

Competition Act 1998 s 25(11).

The FCA has published guidance on investigations.

For the purposes of an investigation, the FCA may, by notice in writing, require any person to produce

to it a specified (‘Specified’ means: (1) specified, or described, in the notice; or (2) falling within a

category which is specified, or described, in the notice: Competition Act 1998 s 26(4)) document, or

to provide it with specified information, which it considers relates to any matter relevant to the

investigation (Competition Act 1998 s 26(1), (2) (s.6(1) amended by the Enterprise Act 2002 s.278(1),

Sch 25 para. 38/a, (20)(a); and SI 2004/1261), The power to require a person to produce a document

includes power: (1) if the document is produced, to take copies of it or extracts from it or to require

him, or any person who is a present or past officer of his, or is or was at any time employed by him, to

provide an explanation of the document; (2) if the document is not produced, to require him to state,

to the best of his knowledge and belief, where it is: Competition Act 1998 s.26(6).) The FCA may also

specify in the notice the time and place at which any document is to be produced or any information

is to be provided and the manner and form in which it is to be produced or provided.

Power to enter business premises without a warrant. Any officer of the Office of Fair Trading (the

‘FCA’) who is authorised in writing by the FCA to do so (an ‘investigating officer’) may enter any

business premises (‘Business premises’ means premises (or any part of premises) not used as a

dwelling; Competition Act 1998 s.27(6). ‘Premises’ includes any land or means of transport:

Competition Act 1998 s.59(1) definition substituted by SI 2004/1261)) in connection with an

investigation (Competition Act 1998 s.27(1) (amended by the Enterprise Act 2002 s.278(1), Sch 25

para. 38(1), (21)(a), and SI 2004/1261. In certain circumstances the officer may be required to produce

evidence of his authorisation and certain other information.) No investigating officer is to enter any

premises in the exercise of his powers under these provisions unless he has given to the occupier of

the premises a written notice (Competition Act 1998 s.59(2). This requirement does not apply: (1) if

the FCA has a reasonable suspicion that the premises are, or have been, occupied by (a) a party to an

agreement which it is investigating under s.25; or (b) an undertaking the conduct of which it is

investigating under s.25; or (2) if the investigating officer has taken all such steps as are reasonably

practicable to give notice but has not been able to do so: 27(3) (amended by the Enterprise Act 2002

Sch 25 para. 38(1), (21)(a), (b) and SI 2004/1261) which:

(1) gives at least two working days’ notice of the intended entry;

(2) indicates the subject matter and purpose of the investigation; and

(3) indicates the nature of certain offences created by the failure to comply.

An investigating officer entering any premises under these provisions may:

(a) take with him such equipment as appears to him to be necessary;

(b) require any person on the premises (i) to produce any document which he considers relates

to any matter relevant to the investigation; and (ii) if the document is produced, to provide an

explanation of it;

(c) require any person to state, to the best of his knowledge and belief, where any such document

is to be found;

(d) take copies of, or extracts from, any document which is produced;

(e) require any information which is stored in any electronic form and is accessible from the

premises and which the investigating officer considers relates to any matter relevant to the

investigation, to be produced in a form (i) in which it can be taken away; and (ii) in which it is

visible and legible or from which it can readily be produced in a visible and legible form;

(f) take any steps which appear to be necessary for the purpose of preserving or preventing

interference with any document which he considers relates to any matter relevant to the

investigation.

A reasonable period may be allowed for an occupier’s legal adviser to arrive at the premises before

an investigation continues.