Digital Markets, Competition and Consumers Act 2024

Chapter 3 U.K. Conduct requirements

Imposition of conduct requirements U.K.

Prospective

19 Power to impose conduct requirements U.K.

(1) The CMA may impose one or more conduct requirements on a designated undertaking by giving the undertaking a notice containing the information set out in section 21.

(2) The CMA may vary a conduct requirement imposed on a designated undertaking by giving the undertaking a revised version of that notice.

(3) “Conduct requirements” are requirements as to how the designated undertaking must conduct itself in relation to a relevant digital activity, and references in this Part to imposing conduct requirements include references to varying conduct requirements in reliance on subsection (2).

(4) As soon as reasonably practicable after giving a notice under subsection (1) or (2), the CMA must publish the notice.

(5) The CMA may only impose a conduct requirement or a combination of conduct requirements on a designated undertaking if it considers that it would be proportionate to do so for the purposes of one or more of the following objectives—

(a) the fair dealing objective,

(b) the open choices objective, and

(c) the trust and transparency objective,

having regard to what the conduct requirement or combination of conduct requirements is intended to achieve.

(6) The fair dealing objective is that users or potential users of the relevant digital activity are—

(a) treated fairly, and

(b) able to interact, whether directly or indirectly, with the undertaking on reasonable terms.

(7) The open choices objective is that users or potential users of the relevant digital activity are able to choose freely and easily between the services or digital content provided by the undertaking and services or digital content provided by other undertakings.

(8) The trust and transparency objective is that users or potential users of the relevant digital activity have the information they require to enable them to—

(a) understand the services or digital content provided by the undertaking through the relevant digital activity, including the terms on which they are provided, and

(b) make properly informed decisions about whether and how they interact with the undertaking in respect of the relevant digital activity.

(9) A conduct requirement must be of a permitted type (see section 20).

(10) Before imposing a conduct requirement or a combination of conduct requirements on a designated undertaking, the CMA must have regard in particular to the benefits for consumers that the CMA considers would likely result (directly or indirectly) from the conduct requirement or combination of conduct requirements.

(11) A conduct requirement—

(a) comes into force at a time determined by the CMA, and

(b) ceases to have effect—

(i) in accordance with a decision of the CMA to revoke the requirement (see section 22), or

(ii) subject to provision made in reliance on section 17 (existing obligations), when the designation to which the requirement relates ceases to have effect.

Commencement Information

I1 S. 19 not in force at Royal Assent, see s. 339(1)

20 Permitted types of conduct requirement U.K.

(1) Conduct requirements are of a permitted type if they are within subsection (2) or (3).

(2) Requirements are within this subsection if they are for the purpose of obliging a designated undertaking to—

(a) trade on fair and reasonable terms;

(b) have effective processes for handling complaints by and disputes with users or potential users;

(c) provide clear, relevant, accurate and accessible information about the relevant digital activity to users or potential users;

(d) give explanations, and a reasonable period of notice, to users or potential users of the relevant digital activity, before making changes in relation to the relevant digital activity where those changes are likely to have a material impact on the users or potential users;

(e) present to users or potential users any options or default settings in relation to the relevant digital activity in a way that allows those users or potential users to make informed and effective decisions in their own best interests about those options or settings.

(3) Requirements are within this subsection if they are for the purpose of preventing a designated undertaking from—

(a) applying discriminatory terms, conditions or policies to certain users or potential users or certain descriptions of users or potential users;

(b) using its position in relation to the relevant digital activity, including its access to data relating to that activity, to treat its own products more favourably than those of other undertakings;

(c) carrying on activities other than the relevant digital activity in a way that is likely to materially increase the undertaking’s market power, or materially strengthen its position of strategic significance, in relation to the relevant digital activity;

(d) requiring or incentivising users or potential users of one of the designated undertaking’s products to use one or more of the undertaking’s other products alongside services or digital content the provision of which is, or is comprised in, the relevant digital activity;

(e) restricting interoperability between the relevant service or digital content and products offered by other undertakings;

(f) restricting whether or how users or potential users can use the relevant digital activity;

(g) using data unfairly;

(h) restricting the ability of users or potential users to use products of other undertakings.

(4) The Secretary of State may by regulations amend this section so as to modify the permitted types of requirement.

(5) Regulations under subsection (4) are subject to the affirmative procedure.

Commencement Information

I2 S. 20 in force at Royal Assent for specified purposes, see s. 339(2)(c)

Prospective

21 Content of notice imposing a conduct requirement U.K.

A notice under section 19(1) or (2) must include, in relation to each conduct requirement or, as the case may be, each conduct requirement as varied, a statement of—

(a) the conduct requirement and the relevant digital activity to which it relates;

(b) the CMA’s reasons for imposing the conduct requirement, including—

(i) the objective for the purposes of which the CMA considers it is proportionate to impose the conduct requirement (see section 19(5)),

(ii) the benefits that the CMA considers would likely result from the conduct requirement (see section 19(10)), and

(iii) the permitted type of requirement to which the CMA considers the conduct requirement belongs (see section 20);

(c) when the conduct requirement comes into force;

(d) the last day of the designation period for the designation to which the conduct requirement relates;

(e) how the conduct requirement interacts with any other conduct requirement that has been imposed on the undertaking.

Commencement Information

I3 S. 21 not in force at Royal Assent, see s. 339(1)

Prospective

22 Revocation of conduct requirements U.K.

(1) The CMA may revoke a conduct requirement with effect from such time as the CMA may determine.

(2) Where the CMA decides to revoke a conduct requirement it must give the designated undertaking to which the requirement relates a notice specifying when the revocation is to have effect.

(3) As soon as reasonably practicable after giving the notice, the CMA must publish the notice.

Commencement Information

I4 S. 22 not in force at Royal Assent, see s. 339(1)

Prospective

23 Transitional provision relating to conduct requirements etc U.K.

(1) A notice under section 19(1) or (2) (content of notice imposing a conduct requirement), or under section 22(2) (revocation of conduct requirements), may include transitional, transitory or saving provision.

(2) The fact that a conduct requirement ceases to have effect does not affect the exercise of any digital markets functions in relation to a breach or possible breach of that requirement.

Commencement Information

I5 S. 23 not in force at Royal Assent, see s. 339(1)

Prospective

24 Consultation in relation to a conduct requirement U.K.

(1) Before imposing a conduct requirement on a designated undertaking, the CMA must—

(a) carry out a public consultation on the conduct requirement which it proposes to impose, and

(b) bring the public consultation to the attention of such persons as it considers appropriate.

(2) For the purposes of the consultation, the CMA must publish—

(a) the conduct requirement which the CMA proposes to impose, or a description of that requirement, and

(b) a statement of the permitted type of requirement to which the CMA considers the proposed conduct requirement belongs.

(3) Consultation under subsection (1) may be carried out at the same time as consultation under section 13 (consultation on proposed decision.

(4) Before revoking a conduct requirement, the CMA must—

(a) carry out a public consultation on the proposed revocation, and

(b) bring the public consultation to the attention of such persons as it considers appropriate.

Commencement Information

I6 S. 24 not in force at Royal Assent, see s. 339(1)

Prospective

25 Duty to keep conduct requirements under review U.K.

The CMA must keep under review, in relation to a designated undertaking—

(a) whether to impose, vary or revoke a conduct requirement;

(b) the extent to which it is complying with each conduct requirement to which it is subject;

(c) the effectiveness of each conduct requirement to which it is subject;

(d) whether to take action in accordance with sections 26 to35 (enforcement of conduct requirements) or Chapter 7 (enforcement and appeals) in respect of any breaches or suspected breaches of a conduct requirement.

Commencement Information

I7 S. 25 not in force at Royal Assent, see s. 339(1)

Prospective

Enforcement of conduct requirements U.K.

26 Power to begin a conduct investigation U.K.

(1) The CMA may begin an investigation (a “conduct investigation”) where it has reasonable grounds to suspect that an undertaking has breached a conduct requirement.

(2) A conduct investigation is an investigation into—

(a) whether a breach has occurred, and

(b) if it has, what action, if any, the CMA should take in relation to the breach.

(3) When the CMA begins a conduct investigation it must give a notice (a “conduct investigation notice”) to the undertaking which it suspects has breached a conduct requirement.

(4) The conduct investigation notice must—

(a) state the conduct requirement which the CMA suspects has been breached;

(b) describe the conduct which the CMA suspects constituted the breach;

(c) state the period within which the undertaking may make representations in relation to the conduct investigation (see subsection (5));

(d) state the period by the end of which the CMA must give a notice to the undertaking setting out its findings as a result of the conduct investigation (see section 30(2));

(e) state the circumstances in which that period may be extended (see section 104);

(f) state the effect of the following provisions—

(i) section 28 (closing a conduct investigation without making a finding);

(ii) section 30 (notice of findings);

(iii) section 36 (commitments).

(5) The period mentioned in subsection (4)(c) is such period as the CMA may determine.

(6) As soon as reasonably practicable after giving a conduct investigation notice, the CMA must publish the conduct investigation notice.

Commencement Information

I8 S. 26 not in force at Royal Assent, see s. 339(1)

27 Consideration of representations U.K.

Before making a finding that an undertaking to which a conduct investigation relates has breached or is breaching a conduct requirement, the CMA must consider any representations that the undertaking makes in relation to the conduct investigation.

Commencement Information

I9 S. 27 not in force at Royal Assent, see s. 339(1)

28 Closing a conduct investigation without making a finding U.K.

(1) The CMA may close a conduct investigation at any time without making a finding as to whether or not a breach of a conduct requirement has occurred.

(2) When the CMA decides to close a conduct investigation, the CMA must give the undertaking to which the investigation related a notice to that effect.

(3) The notice must—

(a) describe the undertaking in respect of which the CMA began the investigation,

(b) state the conduct requirement to which the investigation related, and

(c) include the CMA’s reasons for closing the investigation.

(4) As soon as reasonably practicable after giving a notice under subsection (2), the CMA must publish the notice.

Commencement Information

I10 S. 28 not in force at Royal Assent, see s. 339(1)

29 Countervailing benefits exemption U.K.

(1) The CMA must close a conduct investigation under section 28 where representations made by the undertaking to which the investigation relates lead the CMA to consider that the countervailing benefits exemption applies.

(2) The countervailing benefits exemption applies where—

(a) the conduct to which the investigation relates gives rise to benefits to users or potential users of the digital activity in respect of which the conduct requirement in question applies,

(b) those benefits outweigh any actual or likely detrimental impact on competition resulting from a breach of the conduct requirement,

(c) those benefits could not be realised without the conduct,

(d) the conduct is proportionate to the realisation of those benefits, and

(e) the conduct does not eliminate or prevent effective competition.

(3) Where the CMA closes a conduct investigation as a result of subsection (1), the undertaking to which the decision relates is to be treated as if the CMA had found that the conduct did not constitute a breach of the conduct requirement.

Commencement Information

I11 S. 29 not in force at Royal Assent, see s. 339(1)

30 Notice of findings U.K.

(1) The CMA must give a notice to the undertaking to which a conduct investigation relates setting out its findings as a result of the conduct investigation (subject to subsection (5)).

(2) The notice must be given on or before the last day of the period (the “conduct investigation period”) of 6 months beginning with the day on which the conduct investigation notice is given to the undertaking.

(3) The notice must—

(a) state whether or not the CMA has found that a breach has occurred, and

(b) include reasons for the CMA’s findings.

(4) As soon as reasonably practicable after giving the notice, the CMA must publish the notice.

(5) Subsection (1) does not apply—

(a) where the CMA closes the conduct investigation under section 28, or

(b) in relation to any behaviour in respect of which the CMA has accepted a commitment from the undertaking (see section 36).

Commencement Information

I12 S. 30 not in force at Royal Assent, see s. 339(1)

31 Enforcement orders U.K.

(1) Where the CMA finds, as a result of a conduct investigation, that an undertaking has breached a conduct requirement, it may make an order (an “enforcement order”) imposing on the undertaking such obligations as the CMA considers appropriate for one or more of the following purposes—

(a) in a case where the breach is ongoing, stopping the breach;

(b) preventing the breach from happening again;

(c) addressing any damage caused by the breach.

(2) The CMA may vary an enforcement order by making a revised version of that order.

(3) An enforcement order may include transitional, transitory or saving provision.

(4) An enforcement order must—

(a) specify the breach to which it relates;

(b) include the CMA’s reasons for imposing the obligations in the order.

(5) The CMA may consult such persons as the CMA considers appropriate before making an enforcement order (including a revised version of an order).

(6) Where the CMA decides to make an enforcement order (other than an interim enforcement order under section 32), it must do so as soon as reasonably practicable after giving the undertaking a notice of its findings under section 30(1).

(7) As soon as reasonably practicable after making an enforcement order (including a revised version of an order), the CMA must publish the order.

(8) The CMA may consent to an undertaking acting in a way that would otherwise constitute a breach of an enforcement order.

Commencement Information

I13 S. 31 not in force at Royal Assent, see s. 339(1)

32 Interim enforcement orders U.K.

(1) The CMA may make an enforcement order on an interim basis (an “interim enforcement order”) in relation to a suspected breach of a conduct requirement where—

(a) the CMA has begun a conduct investigation in relation to the suspected breach, and

(b) the CMA considers that it is necessary to act on an interim basis—

(i) to prevent significant damage to a particular person or category of person,

(ii) to prevent conduct which could reduce the effectiveness of any other steps the CMA might take in relation to the conduct requirement which it suspects the undertaking has breached or is breaching, or

(iii) to protect the public interest.

(2) An interim enforcement order must specify the suspected breach to which it relates.

(3) Before making an interim enforcement order, the CMA must give the undertaking to which it would relate an opportunity to make representations to it about the order which it proposes to make.

(4) But the duty in subsection (3) does not apply where the CMA considers that compliance would substantially reduce the effectiveness of the order.

(5) Where the CMA makes an interim enforcement order in relation to an undertaking without complying with subsection (3), the CMA must, as soon as reasonably practicable, give the undertaking a notice including—

(a) the reasons for the CMA’s decision to make the interim enforcement order without complying with subsection (3), and

(b) the period within which the undertaking may make representations in relation to the interim enforcement order (see subsection (7)).

(6) As soon as reasonably practicable after giving a notice under subsection (5), the CMA must publish the notice.

(7) The period mentioned in subsection (5)(b) is such period as the CMA may determine.

(8) The CMA must consider representations which it receives following a notice under subsection (5) as soon as reasonably practicable.

Commencement Information

I14 S. 32 not in force at Royal Assent, see s. 339(1)

33 Duration of enforcement orders U.K.

(1) An enforcement order (including a revised version of an order) comes into force at such time as the CMA may specify in the order.

(2) An interim enforcement order ceases to have effect—

(a) when revoked under section 34,

(b) subject to provision made in reliance on section 17 (existing obligations), when the designation to which it relates ceases to have effect, or

(c) when one of the following events occurs in relation to the suspected breach to which the order relates—

(i) the CMA gives the undertaking a notice stating that the CMA has found that no breach has occurred (see section 30);

(ii) the CMA accepts a commitment from the undertaking (see section 36);

(iii) the CMA makes an enforcement order (see section 31(1));

(iv) the CMA notifies the undertaking that it has decided not to make an enforcement order that is not an interim enforcement order.

(3) An enforcement order other than an interim enforcement order ceases to have effect—

(a) when revoked under section 34, or

(b) subject to provision made in reliance on section 17 (existing obligations), when the designation to which it relates ceases to have effect.

(4) The fact that an enforcement order ceases to have effect does not affect the exercise of any functions in relation to a breach or possible breach of that order.

Commencement Information

I15 S. 33 not in force at Royal Assent, see s. 339(1)

34 Revocation of enforcement orders U.K.

(1) The CMA may revoke an enforcement order by giving a notice to that effect to the undertaking to which the order applies.

(2) The notice must include the reasons for the CMA’s decision to revoke the enforcement order.

(3) The notice may include transitional, transitory or saving provision in relation to the revocation of the enforcement order.

(4) As soon as reasonably practicable after revoking an enforcement order, the CMA must publish the notice.

(5) The CMA may consult such persons as the CMA considers appropriate on any proposal to revoke an enforcement order.

Commencement Information

I16 S. 34 not in force at Royal Assent, see s. 339(1)

35 Duty to keep enforcement orders under review U.K.

The CMA must keep under review—

(a) the extent to which an undertaking to which it has given an enforcement order is complying with that order,

(b) the effectiveness of an enforcement order,

(c) whether to vary or revoke an enforcement order,

(d) where an enforcement order is revoked, whether to make a new enforcement order, and

(e) whether to take action in accordance with Chapter 7 (enforcement and appeals) in respect of an undertaking which does not comply with an enforcement order.

Commencement Information

I17 S. 35 not in force at Royal Assent, see s. 339(1)

Prospective

Commitments relating to conduct requirements U.K.

36 Commitments U.K.

(1) The CMA may accept an appropriate commitment from an undertaking subject to a conduct investigation as to its behaviour in respect of a conduct requirement to which the investigation relates.

(2) A commitment is appropriate where the CMA considers that compliance with the commitment by the undertaking would mean that it would not be necessary to carry out a conduct investigation so far as relating to the behaviour to which the commitment relates.

(3) Following the acceptance of a commitment by the CMA as to the behaviour of an undertaking—

(a) the undertaking that gave the commitment must comply with it at all times when it is in force, and

(b) so far as relating to the behaviour, the CMA may not give a notice to the undertaking under section 30 (notice of findings).

(4) The acceptance of a commitment does not prevent—

(a) a conduct investigation from continuing so far as it relates to other behaviour in relation to the same or a different conduct requirement, or

(b) the CMA beginning a new conduct investigation in relation to the behaviour to which the commitment relates where—

(i) it has reasonable grounds to believe that there has been a material change of circumstances since the commitment was accepted,

(ii) it has reasonable grounds to suspect that the undertaking has not complied with one or more of the terms of the commitment, or

(iii) it has reasonable grounds to suspect that information which led it to accept the commitment was incomplete, false or misleading in a material particular.

(5) A commitment under this section comes into force when a notice of its acceptance is published by the CMA.

(6) A commitment under this section ceases to have effect—

(a) subject to provision made in reliance on section 17 (existing obligations)—

(i) in accordance with any terms of the commitment about when it is to cease to have effect, or

(ii) when the conduct requirement to which the commitment relates ceases to have effect, or

(b) when the undertaking is released from the requirement to comply with the commitment.

(7) The CMA may by notice accept a variation to a commitment from time to time provided the commitment as varied would still be appropriate.

(8) The CMA may release an undertaking from the requirement to comply with a commitment where it considers that it would be appropriate to do so.

(9) The fact that a commitment ceases to have effect does not affect the exercise of any functions in relation to a breach or possible breach of that commitment.

(10) Schedule 1 makes provision about—

(a) accepting, or accepting a variation of, a commitment, and

(b) releasing an undertaking from the requirement to comply with a commitment,

for the purposes of this Chapter and Chapter 4 (pro-competition orders).

Commencement Information

I18 S. 36 not in force at Royal Assent, see s. 339(1)

37 Duty to keep commitments under review U.K.

The CMA must keep under review—

(a) the appropriateness of a commitment or releasing an undertaking from a commitment,

(b) the extent to which an undertaking which has given a commitment is complying with it, and

(c) the appropriateness of taking further action in accordance with Chapter 7 (enforcement and appeals) in respect of an undertaking which does not comply with a commitment which it has given.

Commencement Information

I19 S. 37 not in force at Royal Assent, see s. 339(1)

Final offer mechanism U.K.

Prospective

38 Power to adopt final offer mechanism U.K.

(1) Where the CMA considers that the following three conditions are met in relation to a transaction between a designated undertaking and a third party, the CMA may—

(a) require the undertaking, and

(b) invite the third party,

to submit to the CMA terms as to payment (“final offer payment terms”) which the undertaking or, as the case may be, the third party regards as fair and reasonable for the transaction.

(2) The first condition is that the transaction is a transaction in which the designated undertaking would—

(a) provide goods or services to the third party, or

(b) acquire goods or services from, or use goods or services of, the third party.

(3) The second condition is that, by failing to agree fair and reasonable terms as to payment for the transaction, the designated undertaking has breached an enforcement order, other than an interim enforcement order, made in relation to a breach of a conduct requirement of the type permitted by section 20(2)(a) (requirement to trade on fair and reasonable terms).

(4) The third condition is that the CMA could not satisfactorily address the breach within a reasonable time frame by exercising any of its other digital markets functions.

(5) In subsection (1), “transaction” means—

(a) a future transaction, or

(b) the future performance of an ongoing transaction,

whether in accordance with a contract or otherwise.

(6) In sections 39 to 44—

• “the designated undertaking” means the undertaking mentioned in subsection (1);

• “the transaction” means the transaction mentioned in subsection (1);

• “the third party” means the third party mentioned in subsection (1).

Commencement Information

I20 S. 38 not in force at Royal Assent, see s. 339(1)

Prospective

39 Collective submissions U.K.

(1) Where the CMA considers that—

(a) the conditions in section 38(2), (3) and (4) are met in relation to a single transaction between the designated undertaking and two or more third parties, and

(b) the third parties are capable of acting jointly in relation to final offer payment terms relating to the transaction,

the CMA may exercise the power in section 38(1) to invite the third parties (the “joined third parties”) to make a single submission to the CMA of final offer payment terms that the joined third parties collectively regard as fair and reasonable for the transaction.

(2) Where the CMA proceeds in reliance on subsection (1), sections 40 to 44 apply as if—

(a) in section 40(8) references to “the third party” were to any one or more of the joined third parties;

(b) all other references to “the third party” were to the joined third parties.

(3) Where the CMA considers that—

(a) the conditions in section 38(2), (3) and (4) are met in relation to two or more transactions between the designated undertaking and two or more third parties,

(b) the same terms as to payment are capable of applying to the transactions, and

(c) the third parties are capable of acting jointly in relation to final offer payment terms relating to the transactions,

the CMA may exercise the power in section 38(1) to invite the third parties (the “grouped third parties”) to make a single submission to the CMA of final offer payment terms that the grouped third parties collectively regard as fair and reasonable for the transactions (the “grouped transactions”).

(4) Where the CMA proceeds in reliance on subsection (3), sections 40 to 44 apply as if—

(a) in the following provisions, references to “the third party” were to any one or more of the grouped third parties—

(i) section 40(8);

(ii) section 41(2)(b);

(iii) section 42(1)(b);

(iv) section 43(2);

(b) all other references to “the third party” were to the grouped third parties;

(c) in section 43(1) and (2), the reference to “the transaction” were to any one or more of the grouped transactions;

(d) all other references to “the transaction” were to the grouped transactions.

Commencement Information

I21 S. 39 not in force at Royal Assent, see s. 339(1)

Prospective

40 Final offer mechanism U.K.

(1) The power conferred by section 38(1) is to be exercised by giving a notice (a “final offer initiation notice”) to the designated undertaking and the third party.

(2) The final offer initiation notice must—

(a) specify the designated undertaking, the third party and the digital activity in respect of which the power is being exercised;

(b) describe the breach of the enforcement order in relation to which the second condition in section 38 is met;

(c) summarise the transaction;

(d) specify a date (the “submission date”) on or before which final offer payment terms are to be submitted to the CMA;

(e) state the period by the end of which the CMA must make any final offer order (see section 41(3));

(f) state the circumstances in which that period may be extended (see section 104).

(3) As soon as reasonably practicable after giving a final offer initiation notice, the CMA must publish a statement which—

(a) includes the information mentioned in subsection (2), and

(b) if the CMA is considering taking any other action relating to any underlying cause of the breach of the enforcement order, includes a summary of, and explanation for considering, that action.

(4) After giving a final offer initiation notice, the CMA may—

(a) change its view of the transaction or the third party, provided that the new transaction or third party remains substantially the same as the previous transaction or third party,

(b) revise any list of joined third parties or grouped third parties, or

(c) change the submission date.

(5) The powers conferred by subsection (4) are to be exercised by giving a revised version of the final offer initiation notice to the designated undertaking and the third party.

(6) Where the power conferred by subsection (4)(b) is being exercised, the reference in subsection (5) to “the third party” includes each person that was a joined third party or a grouped third party prior to the exercise of the power or that is to be a joined third party or a grouped third party after the exercise of the power.

(7) As soon as reasonably practicable after giving a revised version of a final offer initiation notice, the CMA must publish a statement summarising the contents of the revised notice.

(8) To facilitate the submission of final offer payment terms, the CMA may (among other things)—

(a) use an information notice to require that the designated undertaking or the third party give information to the CMA (see section 69);

(b) share information between the designated undertaking and the third party in accordance with section 241 of EA 2002 (statutory functions);

(c) specify the form or manner in which final offer payment terms must be submitted.

Commencement Information

I22 S. 40 not in force at Royal Assent, see s. 339(1)

41 Final offers: outcome U.K.

(1) This section applies where—

(a) the CMA has exercised its power under section 38(1), and

(b) either—

(i) the CMA has received final offer payment terms from both the designated undertaking and the third party, or

(ii) the CMA has received final offer payment terms from either the designated undertaking or the third party (but not both), and the submission date has passed.

(2) The CMA must, unless section 43(1) applies, make an order (a “final offer order”) requiring that final offer payment terms it has received from the designated undertaking or the third party are to be given effect for the purposes of—

(a) the transaction, and

(b) any transaction between the designated undertaking and the third party which is substantially the same as the transaction.

(3) The CMA must comply with subsection (2) on or before the last day of the period (the “final offer period”) of 6 months beginning with the day on which the final offer initiation notice is given to the designated undertaking and the third party.

(4) The Secretary of State may by regulations amend this section so as to modify the length of the final offer period.

(5) Regulations under subsection (4) are subject to the affirmative procedure.

Commencement Information

I23 S. 41 in force at Royal Assent for specified purposes, see s. 339(2)(c)

Prospective

42 Final offer orders: supplementary U.K.

(1) A final offer order must impose on the designated undertaking such obligations as the CMA considers appropriate for the purpose of—

(a) securing compliance with the requirement imposed by virtue of section 41(2), and

(b) preventing the designated undertaking from making an agreement with the third party which conflicts with that requirement.

(2) At the same time as making a final offer order, the CMA must give the designated undertaking and the third party a notice—

(a) summarising the transaction,

(b) including the reasons for the order, and

(c) enclosing a copy of the order.

(3) As soon as reasonably practicable after making a final offer order, the CMA must publish a statement summarising the contents of the final offer order and the notice given under subsection (2).

Commencement Information

I24 S. 42 not in force at Royal Assent, see s. 339(1)

Prospective

43 Decision not to make final offer order U.K.

(1) The CMA may decide not to make a final offer order in relation to the transaction where it has reasonable grounds to believe that there has been a material change of circumstances since the final offer initiation notice was given.

(2) For the purposes of this section and section 44(3) a material change of circumstances includes an agreement between the designated undertaking and the third party with respect to terms as to payment in relation to the transaction.

(3) Where the CMA decides not to make a final offer order, it must give a notice to that effect to the designated undertaking and the third party.

(4) The notice must include the reasonable grounds referred to in subsection (1).

(5) As soon as reasonably practicable after giving a notice under subsection (3), the CMA must publish a statement summarising the contents of the notice.

Commencement Information

I25 S. 43 not in force at Royal Assent, see s. 339(1)

Prospective

44 Duration and revocation of final offer orders U.K.

(1) A final offer order comes into force at such time as the CMA may specify in the order.

(2) A final offer order ceases to have effect—

(a) when revoked under this section, or

(b) subject to provision made in reliance on section 17 (existing obligations), when the designation to which it relates ceases to have effect.

(3) The CMA may revoke, or partially revoke, a final offer order where it has reasonable grounds to believe that there has been a material change of circumstances since the final offer order was made.

(4) Where the CMA decides to revoke, or partially revoke, a final offer order, it must give a notice to that effect to the designated undertaking and the third party.

(5) The notice must include the reasons for the CMA’s decision.

(6) The notice may include transitional, transitory or saving provision in relation to the revocation, or partial revocation, of the final offer order.

(7) As soon as reasonably practicable after revoking, or partially revoking, a final offer order, the CMA must publish a statement summarising the contents of the notice revoking, or partially revoking, the order.

(8) The fact that a final offer order ceases to have effect does not affect the exercise of any digital markets functions in relation to a breach or possible breach of that order.

Commencement Information

I26 S. 44 not in force at Royal Assent, see s. 339(1)

Prospective

45 Duty to keep final offer orders under review U.K.

The CMA must keep under review—

(a) the extent to which an undertaking to which it has given a final offer order is complying with that order,

(b) the effectiveness of the final offer order,

(c) whether to revoke the final offer order, and

(d) whether to take action in accordance with Chapter 7 (enforcement and appeals) in respect of an undertaking which does not comply with a final offer order.

Commencement Information

I27 S. 45 not in force at Royal Assent, see s. 339(1)