Digital Markets, Competition and Consumers Act 2024

Chapter 3 Markets

134 Market studies: removal of time-limit on pre-reference consultation

(1) Chapter 1 of Part 4 of EA 2002 (market studies and market investigations: references) is amended as follows.

(2) In section 131B (market studies and the making of decisions to refer: time-limits) omit subsections (1) to (3).

(3) In section 131C (time-limits under section 131B: supplementary)—

(a) in subsection (1) omit paragraph (a);

(b) in subsection (2) omit paragraph (a) and the “or” after it.

135 Power to make a reference after previously deciding not to do so

(1) Section 131B of EA 2002 (market studies and the making of decisions to refer: time limits) is amended as follows.

(2) In the heading, after “time-limits” insert “etc”.

(3) In subsection (7), for “This section is” substitute “Subsections (4) to (6) are”.

(4) After subsection (7) insert—

“(8) Where the CMA—

(a) has published a market study notice, and

(b) has decided not to make a reference under section 131 in relation to the matter specified in the notice,

the CMA may subsequently make a reference under section 131 in relation to the matter (without first publishing a market study notice in relation to the matter) only where subsection (9) applies.

(9) This subsection applies where—

(a) the reference under section 131 is made two years or more after the publication of the market study report in relation to the market study notice, or

(b) there has been a material change in circumstances since the preparation of the report.”

136 Scope of market investigations

(1) Chapter 1 of Part 4 of EA 2002 (market studies and market investigations: references) is amended as follows.

(2) In section 133 (contents of market investigation references)—

(a) after subsection (1) insert—

“(1A) A market investigation reference may be framed so as to require the group constituted by the chair of the CMA in respect of the reference to confine its investigation into the effects of features of markets in the United Kingdom for goods or services of a description specified in the reference to the effects of particular features of such markets.

(1B) For the purposes of subsection (1A), “particular features” means features specified in the reference.”;

(b) in subsection (2), for the words before paragraph (a) substitute “For the purposes of subsection (1A), a reference may (for example) specify or describe features that exist in connection with—”.

(3) In section 134 (questions to be decided on market investigation references)—

(a) in subsection (1), for “feature, or combination of features,” substitute “relevant feature”;

(b) in subsection (2), for “feature, or combination of features,” substitute “relevant feature”;

(c) after subsection (2A) insert—

“(2B) In subsections (1) and (2), “relevant feature” means—

(a) any feature of a relevant market which is not excluded from investigation by virtue of section 133(1A), or

(b) a combination of such features.”;

(d) in subsection (7), after “features” insert “concerned”.

137 Acceptance of undertakings at any stage of a market study or investigation

Schedule 8 makes provision allowing the CMA to accept undertakings under Part 4 of EA 2002 (market studies and market investigations) at any stage during a market study or investigation.

138 Final undertakings and orders: power to conduct trials

(1) Schedule 9 makes provision amending Part 4 of EA 2002 allowing the CMA or the Secretary of State to conduct trials to assess the likely effectiveness of final undertakings and orders that the CMA or the Secretary of State is minded to accept or impose under that Part.

(2) The Secretary of State may by regulations amend—

(a) any sectoral enactment, or

(b) section 168 of EA 2002 (regulated markets),

in connection with provision made by Schedule 9.

(3) The power to make regulations under subsection (2) includes power to make provision for the CMA or Secretary of State to be able to modify, or request that another person modifies, any agreement, arrangement, condition, licence, statement (or anything of a similar nature) in connection with an implementation trial measure (within the meaning of Part 4 of EA 2002, as amended by Schedule 9).

(4) But so far as the power to make regulations under subsection (2) is exercised to amend a sectoral enactment that is mentioned in section 168 of EA 2002 (regulated markets), the power may only make provision in connection with a relevant action mentioned in subsection (3) of that section.

(5) For the purposes of this section the sectoral enactments are—

(a) the Civil Aviation Act 2012;

(b) the Health and Social Care Act 2012;

(c) the Transport Act 2000;

(d) the Chiropractors Act 1994;

(e) the Railways Act 1993;

(f) the Osteopaths Act 1993;

(g) the Water Industry Act 1991;

(h) the Broadcasting Act 1990;

(i) the Electricity Act 1989;

(j) the Copyright, Designs and Patents Act 1988;

(k) the Gas Act 1986;

(l) the Patents Act 1977;

(m) the Registered Designs Act 1949;

(n) the Water and Sewerage Services (Northern Ireland) Order 2006 (S.I. 2006/3336 (N.I. 21));

(o) the Gas (Northern Ireland) Order 1996 (S.I. 1996/275 (N.I. 2));

(p) the Electricity (Northern Ireland) Order 1992 (S.I. 1992/231 (N.I. 1)).

(6) The Secretary of State must, before making regulations under subsection (2) that—

(a) amend a sectoral enactment, consult the relevant sectoral authority;

(b) amend section 168 of EA 2002, consult any relevant sectoral authority whom the Secretary of State considers is likely to have an interest in the amendment.

(7) For the purposes of subsection (6) the relevant sectoral authorities are—

(a) in relation to the Civil Aviation Act 2012, the Civil Aviation Authority;

(b) in relation to the Health and Social Care Act 2012, NHS England;

(c) in relation to the Transport Act 2000, the Civil Aviation Authority;

(d) in relation to the Chiropractors Act 1994, the General Chiropractic Council;

(e) in relation to the Railways Act 1993, the Office of Rail and Road;

(f) in relation to the Osteopaths Act 1993, the General Osteopathic Council;

(g) in relation to the Water Industry Act 1991, the Water Services Regulation Authority;

(h) in relation to the Broadcasting Act 1990, the Office of Communications;

(i) in relation to the Electricity Act 1989 and the Gas Act 1986, the Gas and Electricity Markets Authority;

(j) in relation to the Copyright, Designs and Patents Act 1988, the Patents Act 1977 and the Registered Designs Act 1949, the Comptroller-General of Patents, Designs and Trade Marks;

(k) in relation to the Water and Sewerage Services (Northern Ireland) Order 2006, the Gas (Northern Ireland) Order 1996 and the Electricity (Northern Ireland) Order 1992, the Northern Ireland Authority for Utility Regulation.

(8) The Secretary of State may by regulations—

(a) amend subsection (5) so as to add or remove an enactment;

(b) amend subsection (7) so as to add, vary or remove an entry.

(9) Regulations under this section are subject to the affirmative procedure.

139 Duty of CMA to monitor undertakings and orders

(1) Chapter 3 of Part 4 of EA 2002 (market studies and market investigations: enforcement) is amended as follows.

(2) In section 161 (final orders: Part 4), in subsection (5)—

(a) after “advises” insert “, in accordance with section 162(3) or section 162A(8),”;

(b) omit “by reason of a change of circumstances”.

(3) In section 162 (duty of CMA to monitor undertakings and orders: Part 4)—

(a) in the heading, after “monitor” insert “the carrying out of”;

(b) omit subsections (5) to (7).

(4) After that section insert—

“162A Duty of CMA to monitor effectiveness of undertakings and orders: Part 4

(1) The CMA must keep under review the effectiveness of enforcement undertakings accepted under this Part and enforcement orders made under this Part.

(2) The CMA must, whenever requested to do so by the Secretary of State and otherwise from time to time, prepare a report of its findings under subsection (1).

(3) The CMA must—

(a) give a copy of any report prepared by it under subsection (2) to the Secretary of State, and

(b) publish the report.

(4) Subsection (5) applies, in relation to an adverse effect on competition identified in a report mentioned in section 138(1), where—

(a) the report was published within the previous 10 years,

(b) the CMA last took action in accordance with section 138(2) or subsection (5) of this section no less than two years ago, and

(c) the CMA concludes, as a result of a review under subsection (1), that the action mentioned in paragraph (b) has been ineffective for the purposes mentioned in that section.

(5) The CMA must take such action as it considers appropriate for the purposes mentioned in section 138(2) in relation to—

(a) any possible variation or release by the CMA of an enforcement undertaking accepted by it;

(b) any possible new enforcement undertaking to be accepted by the CMA so as to supersede another enforcement undertaking given to it;

(c) any possible variation or revocation by the CMA of an enforcement order made by it;

(d) any possible enforcement undertaking to be accepted by the CMA instead of an enforcement order made by it, or any possible enforcement order to be made by the CMA instead of an enforcement undertaking accepted by it.

(6) Where the CMA decides to take action under subsection (5), the CMA must take the action within the period of six months beginning with the date on which that decision is published under section 172(2)(h).

(7) Subsection (8) applies, in relation to an adverse effect on competition or an effect adverse to the public interest identified in a report mentioned in section 146(1) or 146A(1) (as the case may be), where—

(a) the report was laid before each House of Parliament in accordance with section 172(10) within the previous 10 years,

(b) the Secretary of State last took action in accordance with section 142(2) or 147A(2) (as the case may be) no less than two years ago, and

(c) the CMA concludes, as a result of a review under subsection (1), that action taken in accordance with that section has been ineffective for the purposes mentioned in that section.

(8) The CMA must give the Secretary of State such advice as it considers appropriate for the purposes mentioned in section 147(2) or 147A(2) (as the case may be) in relation to—

(a) any possible variation or release by the Secretary of State of an enforcement undertaking accepted by the Secretary of State;

(b) any possible new enforcement undertaking to be accepted by the Secretary of State under that section so as to supersede another enforcement undertaking given to the Secretary of State;

(c) any possible variation or revocation by the Secretary of State of an enforcement order made by the Secretary of State;

(d) any possible enforcement undertaking to be accepted by the Secretary of State instead of an enforcement order, or any possible enforcement order to be made by the Secretary of State instead of an enforcement undertaking accepted under that section.”

(5) Chapter 4 of Part 4 of EA 2002 (market studies and market investigations: supplementary) is amended as follows.

(6) In section 169 (certain duties of relevant authorities to consult: Part 4), in subsection (6), in paragraph (a) of the definition of “relevant decision”, after sub-paragraph (iv) (inserted by paragraph 10(3) of Schedule 9) insert—

“(v) to take action under section 162A(5); and”.

(7) In section 172 (further publicity requirements: Part 4)—

(a) in subsection (2)—

(i) omit the “and” at the end of paragraph (f);

(ii) at the end insert “; and

(h) any decision by it to take action under section 162A(5).”;

(b) after subsection (10) insert—

“(11) Where the Secretary of State has decided, in accordance with the CMA’s advice under section 162(3) or 162A(8), to accept or release an undertaking under section 159, or to make or revoke an order under section 161, the Secretary of State must, after the acceptance or release of the undertaking or (as the case may be) the making or revocation of the order, lay details of the Secretary of State’s decision and the reasons for it, and the CMA’s advice, before each House of Parliament.”

(8) In section 177 (excisions from reports: Part 4)—

(a) in the heading, after “reports” insert “etc”;

(b) in subsection (1)—

(i) the words from “the Secretary of State” to the end become paragraph (a);

(ii) after that paragraph insert “;

(b) the Secretary of State is under a duty to lay the CMA’s advice under section 162(3) or 162A(8) before each House of Parliament.”

(c) in subsection (2)—

(i) after “report” insert “or advice”;

(ii) after “publication of the matter” insert “, or the inclusion of it in the advice laid before Parliament,”.

140 Taking action in relation to regulated markets

(1) In Chapter 4 of Part 4 of EA 2002 (market studies and market investigations: supplementary), section 168 (regulated markets) is amended as follows.

(2) In subsection (3) omit paragraph (j).

(3) In subsection (4)—

(a) in paragraph (g), for “the duty of the Director General of Electricity Supply for Northern Ireland under article 6 of that Order” substitute “the objective and duties of the Northern Ireland Authority for Utility Regulation under Article 12 of the Energy (Northern Ireland) Order 2003 (S.I. 2003/419 (N.I. 6))”;

(b) omit paragraph (l);

(c) in paragraph (m), for “the duties of the Director General of Gas for Northern Ireland under article 5 of that Order” substitute “the objective and duties of the Northern Ireland Authority for Utility Regulation under Article 14 of the Energy (Northern Ireland) Order 2003”;

(d) in paragraph (r), for “Monitor” substitute “NHS England”.

(4) In subsection (5), in paragraph (ia), for “Monitor” substitute “NHS England”.