Mr John Whittingdale (Maldon & East Chelmsford, Conservative)

I beg to move amendment No. 69, in

clause 46, page 45, line 38, leave out 'in OFCOM's opinion'.

Mr Roger Gale (North Thanet, Conservative)

With this it will be convenient to discuss the following:

Amendment No. 70, in

clause 46, page 46, line 3, leave out 'in OFCOM's opinion'.

Amendment No. 71, in

clause 77, page 74, line 37, leave out 'in OFCOM's opinion'.

Mr John Whittingdale (Maldon & East Chelmsford, Conservative)

I am delighted that the Minister is in such a good mood to listen to our arguments, and I wonder whether I can tempt him again.

The amendment relates to notification to the European Commission if Ofcom decides that a determination of significant market power will affect trade between member states, and gives the Commission the opportunity to exercise a veto.

The provisions of the directive make it plain that the test for whether there will be such an effect on trade between member states is an objective test, and not a subjective opinion of the regulator. The purpose of our amendment is to bring the wording of the Bill into line with the requirement of the directive.

It is slightly unusual for me to stick up for the European Commission, but there is always a first time. Ofcom must not be able to avoid its Community obligations to notify SMP determinations to the Commission, and thus to avoid scrutiny and a possible Commission veto, by saying that in its opinion there is no effect on trade between member states.

This is another case in which we seem to be implementing an EU directive differently, and potentially to the disadvantage of UK competitiveness. Inconsistencies such as this could confuse UK companies and companies thinking of coming into the UK. We tabled the amendment to ensure that the Bill was consistent with the terms of the directive.

Mr Stephen Timms (Minister of State (e-Commerce & Competitiveness), Department of Trade and Industry; East Ham, Labour)

Ofcom will be required to submit the notification of proposals to the European Commission in accordance with the requirements of the directives—notably the framework directive—as the hon. Gentleman rightly said. It follows, therefore, that the onus must be on Ofcom to determine whether those proposals affect trade between member states. That is what the inclusion of the words, ''In Ofcom's opinion'' is intended to achieve. No one else who could have an opinion or direct Ofcom: it is a matter that Ofcom must decide for itself. Therefore we have to retain, ''In Ofcom's opinion'' and I would suggest to the hon. Gentleman that removing those words, as he proposes, would not change the matter. There is no let-out for Ofcom, because if Ofcom takes the view that there is a problem, it has a duty to act in the way that is set out in the Bill, so I do not think that there is a problem.

Mr John Whittingdale (Maldon & East Chelmsford, Conservative)

I accept what the Minister says, although we are slightly concerned that if a company is informed that it is subject to a determination of this sort, it has a right of appeal to the European Union if there is likely to be an effect on trade. That right is removed if Ofcom can turn around and say that it does not think that there will be an effect. It allows Ofcom a degree of latitude that concerns some people. I take the Minister's point and I do not want to make an issue of this, so on the basis of what he has said, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 46 ordered to stand part of the Bill.