Digital Markets, Competition and Consumers Act 2024

Chapter 4 Pro-competition interventions

46 Power to make pro-competition interventions

(1) The CMA may make a pro-competition intervention (a “PCI”) in relation to a designated undertaking where, following a PCI investigation (see section 47), the CMA considers that—

(a) a factor or combination of factors relating to a relevant digital activity is having an adverse effect on competition, and

(b) it would be proportionate to make the PCI for the purposes of remedying, mitigating or preventing the adverse effect on competition.

(2) In considering whether to make a PCI, and the form and content of any PCI, the CMA may have regard to any benefits to UK users or UK customers that the CMA considers have resulted, or may be expected to result, from a factor or combination of factors that is having an adverse effect on competition.

(3) A PCI may take the form of one or both of the following—

(a) an order imposing on the designated undertaking requirements as to how the undertaking must conduct itself, in relation to the relevant digital activity or otherwise (a “pro-competition order”: see section 51);

(b) recommendations made by the CMA to any person exercising functions of a public nature about steps which the CMA considers the person ought to take in respect of the designated undertaking or the digital activity, or otherwise.

(4) A PCI may include provision for the purposes of remedying, mitigating or preventing any detrimental effect on UK users or UK customers that the CMA considers has resulted, or may be expected to result, from the adverse effect on competition to which the PCI relates.

(5) A factor or combination of factors relating to a digital activity has an adverse effect on competition where it prevents, restricts or distorts competition in connection with the relevant digital activity in the United Kingdom.

47 Power to begin a PCI investigation etc

(1) The CMA may begin an investigation (a “PCI investigation”) in relation to a designated undertaking where it has reasonable grounds to consider that a factor or combination of factors relating to a relevant digital activity may be having an adverse effect on competition.

(2) A PCI investigation is an investigation to enable the CMA to determine—

(a) whether to make a PCI, and

(b) if it concludes that it should make a PCI, the form and content of that PCI.

(3) The CMA may begin a PCI investigation in relation to a designated undertaking even if it has previously made a decision not to make a PCI in respect of that undertaking.

48 Procedure relating to PCI investigations

(1) Where the CMA begins a PCI investigation it must give the designated undertaking to which the investigation relates a notice (a “PCI investigation notice”).

(2) The PCI investigation notice must state—

(a) the reasonable grounds mentioned in section 47(1);

(b) the purpose and scope of the PCI investigation;

(c) the period by the end of which the CMA must give the undertaking a notice setting out its decision as a result of the investigation (see section 50(1));

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

(3) The CMA may give the undertaking one or more revised versions of the PCI investigation notice if it changes its view of the purpose and scope of the investigation, provided that the purpose and scope of the investigation remains substantially the same.

(4) As soon as reasonably practicable after giving a PCI investigation notice or a revised version of the PCI investigation notice, the CMA must publish the notice or the revised version of the notice.

49 Consultation on proposed PCI decision

(1) Before making a final decision (a “PCI decision”) on whether to make a PCI as a result of a PCI investigation, the CMA must—

(a) carry out a public consultation on its proposed decision, 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 statement setting out—

(a) the CMA’s findings as a result of the investigation, and

(b) a description of any PCI which the CMA is considering making.

50 PCI decision

(1) The CMA must give the designated undertaking to which a PCI investigation relates a notice of the PCI decision resulting from the investigation on or before the last day of the period (the “PCI investigation period”) of 9 months beginning with the day on which the PCI investigation notice is given to the undertaking.

(2) The notice must—

(a) state the CMA’s findings as a result of the PCI investigation,

(b) describe any PCI which the CMA intends to make, and

(c) include reasons for the CMA’s findings and decision.

(3) The giving of a revised version of the PCI investigation notice under section 48(3) does not change the day on which the PCI investigation period begins.

(4) The CMA must make any PCI within the period of 4 months beginning with the day on which the CMA gives the notice under subsection (1).

(5) The CMA may extend the period mentioned in subsection (4) by up to 2 months where it considers that there are special reasons for doing so.

(6) Where the CMA decides not to make a PCI having previously indicated in a notice under subsection (1) that it intended to make a PCI, the CMA must give the undertaking a further notice—

(a) stating the CMA’s decision, and

(b) including reasons for the decision.

(7) As soon as reasonably practicable after giving a notice under subsection (1) or (6), the CMA must publish a copy of the notice.

51 Pro-competition orders

(1) A pro-competition order may include any provision that may be included in an enforcement order under section 161 of EA 2002 (final orders following market investigation references; and see section 164 of and Schedule 8 to EA 2002 on the provision that may be included).

(2) For the purposes of subsection (1), Schedule 8 to EA 2002 (provision that may be contained in certain enforcement orders) has effect as if—

(a) the reference in paragraph 8(2) to “the relevant report” were to the notice under section 50(1) of this Act;

(b) paragraphs 20A to 20BA were omitted.

(3) A pro-competition order may include provision imposing requirements on an undertaking on a trial basis for the purpose of assisting the CMA in establishing requirements that would be effective in remedying, mitigating or preventing—

(a) the adverse effect on competition to which the order relates;

(b) any detrimental effect on UK users or UK customers resulting from, or expected to result from, the adverse effect on competition.

(4) The provision that may be made in reliance on subsection (3) includes provision requiring an undertaking to act differently in respect of different users or customers (and such provision may be by reference to a description of users or customers, to absolute numbers of users or customers, or to a proportion of the undertaking’s total number of users or customers).

(5) A pro-competition order must contain provision in accordance with section 55(3) (duty to ensure order contains date of next review).

(6) As soon as reasonably practicable after making a pro-competition order, the CMA must publish the order.

52 Replacement of pro-competition orders

(1) The CMA may, by making a further pro-competition order, replace a pro-competition order where it considers that it is appropriate to do so, having regard in particular to—

(a) the effectiveness of the pro-competition order, or of particular provisions in the pro-competition order, in remedying, mitigating or preventing the adverse effect on competition and, where applicable, any detrimental effect on UK users or UK customers identified in the PCI investigation, and

(b) any change of circumstances since the pro-competition order was made.

(2) The CMA may, in particular, replace a pro-competition order so as to—

(a) replace requirements imposed by virtue of that order on a trial basis, or

(b) impose requirements on an undertaking that are similar to or informed by one or more requirements previously imposed on that undertaking, or on a different undertaking, by virtue of another pro-competition order on a trial basis.

(3) In this Chapter—

(a) references to making a replacement order are to revoking a pro-competition order (see section 53) made following a PCI investigation and making a new pro-competition order in reliance on the findings of that PCI investigation, and

(b) references to a “replacement order” are to a pro-competition order made in reliance on subsection (1).

53 Duration and revocation etc of pro-competition orders

(1) A pro-competition order comes into force at such time as the CMA may specify in the order.

(2) A pro-competition 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 a pro-competition order where it considers that it is appropriate to do so, having regard in particular to any change of circumstances since the pro-competition order was made.

(4) Where the CMA decides to revoke a pro-competition order, it must give a notice to that effect to the designated undertaking to which the order relates.

(5) The notice may include transitional, transitory or saving provision in relation to the revocation of the pro-competition order.

(6) The CMA must publish the notice as soon as reasonably practicable after giving it.

(7) Where a pro-competition order resulting from a PCI investigation is revoked without being replaced, the CMA may not make a new pro-competition order in reliance on the same PCI investigation.

(8) The fact that a pro-competition order ceases to have effect does not affect the exercise of any functions in relation to a breach or possible breach of that order.

54 Consultation

(1) The CMA must carry out a public consultation on the terms of any pro-competition order before making it (subject to subsection (4)).

(2) The duty to consult imposed by subsection (1) may be satisfied by consultation on a proposed PCI decision in a case where—

(a) a draft pro-competition order was published for the purposes of that consultation, and

(b) the CMA proposes to make a pro-competition order that is the same or materially the same as the draft pro-competition order.

(3) Before revoking a pro-competition order, the CMA must (subject to subsection (4))—

(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.

(4) The duties in subsections (1) and (3) do not apply in relation to the making of a replacement order which, in the opinion of the CMA, is not materially different from the order which it replaces.

55 Duty to review pro-competition orders etc

(1) The CMA must carry out a review of a pro-competition order, including a replacement order, to determine whether to—

(a) revoke it without making a replacement order, or

(b) make a replacement order.

(2) Each time the CMA makes a pro-competition order, including a replacement order, it must identify a date by which it will carry out the review under subsection (1).

(3) The CMA must secure that the date is specified in the order.

(4) The CMA must keep under review—

(a) the effectiveness of a pro-competition order;

(b) the extent to which an undertaking subject to a pro-competition order is complying with it;

(c) whether to take action in accordance with Chapter 7 (enforcement and appeals) in respect of any undertaking that breaches a pro-competition order.

56 Commitments

(1) The CMA may accept an appropriate commitment from a designated undertaking as to its conduct in respect of an adverse effect on competition or a detrimental effect on UK users or UK customers that the CMA considers has resulted, or may be expected to result, from an adverse effect on competition.

(2) A commitment is appropriate where the CMA considers that compliance with the commitment by the undertaking would contribute to or otherwise be of use in remedying, mitigating or preventing—

(a) the adverse effect on competition, or

(b) the detrimental effect on UK users or UK customers.

(3) Following the acceptance of a commitment by the CMA as to the conduct 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 conduct, the CMA may give a notice to the undertaking—

(i) ending a PCI investigation (if it has begun one) without making a PCI decision, or

(ii) changing the scope of a PCI investigation.

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

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

(a) a PCI investigation from continuing so far as it relates to conduct other than that to which the commitment relates, or

(b) the CMA beginning a new PCI investigation in relation to the conduct to which the commitment relates where it has reasonable grounds—

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

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

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

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

(7) 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 designation to which the commitment relates ceases to have effect, or

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

(8) The following provisions apply in relation to commitments under this section as they apply in relation to commitments under section 36—

(a) subsections (7) to (10) of section 36;

(b) section 37.