Digital Markets, Competition and Consumers Act 2024

Part 3 Enforcement of consumer protection law

Chapter 1 Overview

147 Overview

(1) This Part confers enforcement powers, and makes provision about other remedies, in connection with infringements of consumer protection law.

(2) Chapter 2 provides for the kinds of infringements in respect of which enforcement powers conferred by Chapter 3 or 4 are available.

(3) Chapter 3—

(a) confers powers on courts to make consumer protection orders, and

(b) provides for the acceptance of undertakings as an alternative to the making of such orders.

(4) Chapter 4 confers powers on the CMA in connection with certain kinds of infringements, including powers of the CMA to impose monetary penalties.

(5) Chapter 5 contains general provisions about monetary penalties imposed under Chapter 3 or 4.

(6) Chapter 6 amends Schedule 5 to CRA 2015 in relation to the giving of information notices.

(7) Chapter 7 contains miscellaneous provisions and Chapter 8 contains interpretative provisions.

Chapter 2 Relevant infringements

148 Relevant infringements

(1) A commercial practice is a relevant infringement for the purposes of Chapter 3 or 4 if it—

(a) harms the collective interests of consumers,

(b) meets the UK connection condition (see section 149), and

(c) meets the specified prohibition condition (see section 150).

(2) In this Part—

• “commercial practice” means an act or omission by a trader relating to the promotion or supply of—

  (a)

  the trader’s goods, services or digital content to a consumer,

  (b)

  another trader’s goods, services or digital content to a consumer, or

  (c)

  a consumer’s goods, services or digital content to the trader or another person;

• “consumer” means an individual acting for purposes that are wholly or mainly outside the individual’s business;

• “trader” means—

  (a)

  a person (“P”) acting for purposes relating to P’s business, or

  (b)

  a person acting in the name of, or on behalf of, P for purposes relating to P’s business.

(3) It is immaterial for the purposes of the definition of “commercial practice” in subsection (2) whether the act or omission takes place—

(a) at the time of the promotion or supply in question, or

(b) before or after that time.

(4) It is immaterial for the purposes of the definition of “trader” in subsection (2)—

(a) in relation to paragraph (a) of that definition, whether P is acting personally or through another person acting in P’s name or on P’s behalf;

(b) in relation to paragraph (b) of that definition, whether or not the purposes relating to P’s business are the only or main purposes for which the person is acting.

(5) For the purposes of this Part—

(a) references to consumers include persons who may become consumers in the future;

(b) the collective interests of consumers are capable of being harmed by a single act or omission (as well as by repeated acts or omissions).

149 The UK connection condition

(1) A commercial practice meets the UK connection condition for the purposes of section 148 if at least one of the following conditions is met—

(a) the trader has a place of business in the United Kingdom;

(b) the trader carries on business in the United Kingdom;

(c) the commercial practice occurs in the carrying on of activities by the trader that are, by any means, directed to consumers in the United Kingdom.

(2) It is immaterial for the purposes of subsection (1)(c) whether the activities are carried on in the United Kingdom or elsewhere.

150 The specified prohibition condition

(1) A commercial practice meets the specified prohibition condition for the purposes of section 148 as it applies for the purposes of Chapter 3 if the commercial practice is—

(a) in breach of an enactment listed in Part 1 of Schedule 15 (to the extent specified), or

(b) in breach of an obligation or rule of law listed in Part 2 of that Schedule.

(2) A commercial practice meets the specified prohibition condition for the purposes of section 148 as it applies for the purposes of Chapter 4 if it is in breach of an enactment listed in Schedule 16 (to the extent specified).

(3) In the Table listing enactments in Part 1 of Schedule 15—

(a) the first column lists the enactments;

(b) the corresponding entry in the second column specifies the authorised enforcers in relation to the enactment for the purposes of section 153;

(c) the third column provides information about transitional provision etc in relation to certain enactments.

(4) In the Table listing obligations and rules of law in Part 2 of Schedule 15—

(a) the first column describes the obligations or rules of law;

(b) the corresponding entry in the second column specifies the authorised enforcers in relation to the obligation or rule of law for the purposes of section 153.

Chapter 3 Consumer protection orders and undertakings

Enforcers for purposes of Chapter

151 Enforcers

(1) Each of the following is a public designated enforcer for the purposes of this Chapter—

(a) the CMA;

(b) every local weights and measures authority in Great Britain;

(c) the Department for the Economy in Northern Ireland;

(d) the Civil Aviation Authority;

(e) the Financial Conduct Authority;

(f) the Gas and Electricity Markets Authority;

(g) the Department of Health in Northern Ireland;

(h) the Department for Infrastructure in Northern Ireland;

(i) the Northern Ireland Authority for Utility Regulation;

(j) an enforcement authority within the meaning of section 120(15) of the Communications Act 2003 (regulation of premium rate services);

(k) the Information Commissioner;

(l) the Maritime and Coastguard Agency;

(m) the Office of Communications;

(n) the Office of Rail and Road;

(o) the Office for the Traffic Commissioner;

(p) the Secretary of State;

(q) the Water Services Regulation Authority.

(2) The Consumers’ Association is a private designated enforcer for the purposes of this Chapter.

(3) The Secretary of State may by regulations amend subsection (1) or (2) so as to—

(a) add or remove a person as a public designated enforcer;

(b) add or remove a person as a private designated enforcer;

(c) vary the entry of a person as a public or private designated enforcer.

(4) The power under subsection (3)(a) to add a person as a public designated enforcer is exercisable only if the Secretary of State considers that the person is a public body that has, as one of their purposes, the protection of the collective interests of consumers.

(5) The power under subsection (3)(b) to add a person as a private designated enforcer is exercisable only if the Secretary of State considers that the person—

(a) is not a public body,

(b) satisfies the designation criteria in section 152, and

(c) has, as one of their purposes, the protection of the collective interests of consumers.

(6) The power under subsection (3)(a) and (c) to remove a person as a public designated enforcer, or to vary the entry of such a person, does not apply so far as relating to the persons listed in paragraphs (a) to (c) of subsection (1).

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

152 Designation criteria

(1) These are the designation criteria in respect of a person (“P”) for the purposes of section 151(5)(b)—

(a) P is constituted, managed and controlled in such a way as to be expected to act independently, impartially and with integrity;

(b) P has established procedures to ensure that any potential conflicts of interest are properly dealt with;

(c) P has demonstrated experience, competence and expertise in promoting or protecting the collective interests of consumers;

(d) P has demonstrated the ability to protect the interests of consumers by promoting high standards of integrity and fair dealing in the conduct of business in relation to consumers;

(e) P has the capability to investigate infringements and carry out enforcement procedures under this Chapter;

(f) P is ready and willing to follow best practice in enforcement;

(g) P is ready and willing to co-operate with other enforcers and relevant persons.

(2) P does not fail to meet the criteria in subsection (1)(a) by reason only of a connection with another person carrying on a business of a kind that could be affected (directly or indirectly) by action taken under this Chapter if—

(a) the other person does not control P, and

(b) the profits of the other person’s business are used for the purposes of furthering the objectives of P.

(3) For the purposes of subsection (1)(g)—

(a) “relevant persons” are any persons responsible for the regulation of matters in respect of which acts or omissions may constitute a relevant infringement;

(b) co-operation includes, in particular—

(i) sharing of information (so far as legally permitted), and

(ii) participating in arrangements to co-ordinate action under this Part.

Applications for enforcement orders and interim enforcement orders

153 Applications

(1) An enforcer may (subject to subsection (2)) apply to the appropriate court for an enforcement order or an interim enforcement order if the enforcer considers that—

(a) a person has engaged in, is engaging in or is likely to engage in a commercial practice which constitutes a relevant infringement, or

(b) a person is an accessory to such a practice.

(2) An enforcer may make an application in respect of a relevant infringement only if—

(a) in the case of a commercial practice in breach of an enactment listed in the first column of the Table in Part 1 of Schedule 15, the enforcer is an authorised enforcer in respect of that enactment in accordance with the second column of that Table;

(b) in the case of a commercial practice in breach of an obligation or rule of law listed in the first column of the Table in Part 2 of Schedule 15, the enforcer is an authorised enforcer in respect of that obligation or rule of law in accordance with the second column of that Table.

(3) An application for an enforcement order or an interim enforcement order—

(a) must be made in respect of the person the enforcer considers falls within subsection (1)(a) or (b) (“the respondent”), and

(b) must (where known) name the respondent.

(4) An application by a public designated enforcer for an enforcement order may, subject to subsection (5), include an application for the respondent to pay a monetary penalty.

(5) In the case of a respondent within subsection (1)(a), an application under subsection (4) may be made only in respect of a commercial practice that the enforcer considers a person has engaged, or is engaging, in (but not in respect of a practice that the enforcer considers a person is likely to engage in).

154 CMA directions to other enforcers

(1) This section applies where it appears to the CMA that another enforcer intends to make an application for an enforcement order or an interim enforcement order.

(2) The CMA may direct that an application for such an order in respect of a particular relevant infringement—

(a) may be made only by the CMA,

(b) may be made only by such other enforcer as may be specified in the direction, or

(c) is not to be made by any enforcer.

(3) A direction under subsection (2)—

(a) does not prevent the acceptance of an undertaking under section 163 by the CMA or another enforcer;

(b) does not prevent the CMA from taking such other steps as it considers appropriate for the purpose of securing that the infringement is not committed, continued or repeated.

(4) A direction under subsection (2)(c) may be made—

(a) only in respect of an infringement that is a relevant infringement for the purposes of Chapter 4 (in addition to being a relevant infringement for the purposes of this Chapter), and

(b) only if the CMA is conducting, or proposes to conduct, an investigation under section 180 in relation to that infringement.

(5) A direction under this section may be varied or withdrawn.

(6) The CMA must take such steps as it considers appropriate to bring a direction (or its variation or withdrawal) to the attention of enforcers likely to be affected by it.

155 Consultation

(1) Before making an application for an enforcement order or an interim enforcement order, an enforcer must (subject to subsection (5)) engage in appropriate consultation with the person in respect of whom the order would be made (“the respondent”).

(2) Consultation is “appropriate consultation” for the purposes of subsection (1) if it is carried out for the purposes of—

(a) achieving the cessation of a relevant infringement (in a case where the infringement is occurring) and ensuring it does not recur;

(b) ensuring there is no repetition of a relevant infringement in a case where the infringement has occurred;

(c) ensuring that a relevant infringement does not take place in a case where the infringement has yet to occur;

(d) ensuring, in the case of consultation carried out by a public designated enforcer, that the respondent is aware that an application for an enforcement order may include an application for the respondent to pay a monetary penalty.

(3) Engagement under subsection (1) must be initiated by the giving of a consultation request to the respondent.

(4) A consultation request must be given by notice in writing.

(5) The requirement to consult under this section does not apply if—

(a) the CMA considers that an application for the order in question should be made without delay, or

(b) it is not reasonably practicable for the enforcer to ascertain the identity and whereabouts of the respondent.

(6) The requirement to consult under this section ceases to apply—

(a) in the case of an application for an enforcement order, at the end of the applicable period;

(b) in the case of an application for an interim enforcement order, at the end of the period of 7 days beginning with the day after the respondent receives a consultation request.

(7) In subsection (6)(a) the “applicable period” means—

(a) in a case where the respondent is a member of, or is represented by, an approved representative body, the period of 28 days beginning with the day after the respondent receives a consultation request;

(b) in any other case, the period of 14 days beginning with the day after the respondent receives a consultation request.

(8) In subsection (7)(a) “approved representative body” means a representative body that operates a consumer code which has been approved by—

(a) a public designated enforcer,

(b) a body which represents a public designated enforcer,

(c) a group of public designated enforcers, or

(d) a community interest company whose objects include the approval of consumer codes.

(9) In subsection (8)—

• “consumer code” means an agreement or set of rules regulating, with a view to safeguarding or promoting the interests of consumers, the behaviour of traders who—

  (a)

  are engaged in commercial practices, and

  (b)

  choose to be bound by the agreement or set of rules;

• “representative body” means an organisation established to represent the interests of two or more businesses in a particular sector or area.

Powers of court on application under section 153

156 Enforcement orders and undertakings

(1) This section applies if, on an application under section 153 for an enforcement order, the court finds that the person in respect of whom the application is made (“the respondent”)—

(a) has engaged, is engaging or is likely to engage in a commercial practice which constitutes a relevant infringement (“the infringing practice”), or

(b) is an accessory to the infringing practice.

(2) The court may—

(a) make an enforcement order against the respondent, or

(b) accept an undertaking from the respondent given under subsection (5).

(3) In considering whether to make an enforcement order the court must have regard to whether the respondent—

(a) has given an undertaking under section 163 or 185 in respect of the infringing practice, and

(b) if so, whether the respondent has failed to comply with the undertaking.

(4) An enforcement order is an order that—

(a) indicates the nature of the infringing practice, and

(b) directs the respondent to comply with subsection (6).

(5) The respondent gives an undertaking under this subsection by undertaking—

(a) to comply with subsection (6), or

(b) to take steps which the court believes will secure that the respondent complies with subsection (6).

(6) The respondent complies with this subsection by—

(a) in the case of a respondent within subsection (1)(a), not continuing or repeating the infringing practice (where it is alleged that the person has engaged or is engaging in that practice);

(b) in the case of a respondent within subsection (1)(b), not consenting to or conniving in the infringing practice;

(c) in either case, not engaging in the infringing practice in the course of the respondent’s business or another business;

(d) in either case, not consenting to or conniving in the carrying out of the infringing practice by a body corporate with which the respondent has a special relationship (see section 220).

(7) See also—

(a) section 157 about the inclusion of enhanced consumer measures in an enforcement order or undertaking;

(b) section 158 about the inclusion of a requirement to pay a monetary penalty in an enforcement order.

(8) An enforcement order may require the respondent to publish—

(a) the order;

(b) a corrective statement.

(9) An undertaking under subsection (5) may include a further undertaking by the respondent to publish—

(a) the terms of the undertaking;

(b) a corrective statement.

(10) Publication under subsection (8) or (9)—

(a) must be made in such form and manner, and to such extent, as the court considers appropriate for the purpose of eliminating any continuing effects of the conduct in respect of which the order was made or undertaking given;

(b) is not an enhanced consumer measure for the purposes of this Chapter.

(11) Where the court has accepted from the respondent an undertaking under subsection (5)—

(a) the court may accept from the respondent any variation of the undertaking that the court considers appropriate for meeting the purposes for which the undertaking was given;

(b) the court may release the respondent from the undertaking (whether on its own initiative or at the respondent’s request) if the court considers that the undertaking is no longer necessary to further those purposes.

157 Enforcement orders and undertakings: enhanced consumer measures

(1) An enforcement order or undertaking may include a requirement to take such enhanced consumer measures as the court considers just and reasonable.

(2) For this purpose, the court must in particular consider whether any proposed enhanced consumer measures are proportionate having regard to—

(a) the likely benefit of the measures to consumers,

(b) the costs likely to be incurred by the respondent, and

(c) the likely cost to consumers of obtaining the benefit of the measures.

(3) The costs referred to in subsection (2)(b) are—

(a) the cost of the measures, and

(b) the reasonable administrative costs associated with taking the measures.

(4) Where the respondent is required under an enforcement order or an undertaking to take enhanced consumer measures, the order or undertaking may include requirements for the respondent to provide information or documents to the court in order that the court may determine whether the respondent is taking those measures.

(5) Subsection (6) applies if—

(a) an enforcement order or undertaking includes enhanced consumer measures offering compensation, and

(b) a settlement agreement is entered into in connection with the payment of compensation.

(6) A waiver of a person’s rights in the settlement agreement is not valid if it is a waiver of the right to bring civil proceedings in respect of conduct other than conduct which has given rise to the enforcement order or undertaking.

(7) This section is subject to section 177 (private designated enforcers).

(8) In this section “undertaking” means an undertaking given under section 156(5).

(9) References in this Part to “enhanced consumer measures” are to be read in accordance with section 221.

158 Enforcement orders: requirement to pay monetary penalty

(1) This section applies where the court makes an enforcement order against the respondent on an application made by a public designated enforcer.

(2) The order may, subject to subsection (3), include a requirement for the respondent to pay a monetary penalty.

(3) In the case of a respondent within section 156(1)(a), a requirement to pay a monetary penalty may be imposed only if the court finds that the respondent has engaged, or is engaging, in a commercial practice constituting a relevant infringement (and not in respect of a practice that the court finds that the person is likely to engage in).

(4) Where the order includes a requirement under subsection (2), the order, or a notice accompanying service of the order, must set out the monetary penalty information (see section 203).

(5) The amount of a monetary penalty must be a fixed amount not exceeding £300,000 or, if higher, 10% of the total value of the turnover (if any) of the respondent.

(6) A monetary penalty may not be imposed on the respondent by virtue of this section in respect of any conduct that constitutes an offence if the respondent has been found guilty of that offence.

(7) The respondent does not commit an offence in relation to any conduct in respect of which a monetary penalty is imposed on the respondent by virtue of this section.

(8) In addition to any right of appeal on a point of law, a person liable to pay a monetary penalty by virtue of this section may appeal in respect of—

(a) the decision to impose the penalty, or

(b) the nature or amount of the penalty.

(9) In the application of subsection (4) to Scotland, “service of the order” includes service of an extract order in execution of or diligence on the order.

159 Interim enforcement orders and undertakings

(1) This section applies if—

(a) it is alleged in an application under section 153 for an interim enforcement order that a person (“the respondent”)—

(i) has engaged, is engaging or is likely to engage in a commercial practice which constitutes a relevant infringement (“the infringing practice”), or

(ii) is an accessory to the infringing practice,

(b) it appears to the court that if the application had been an application for an enforcement order it would be likely to be granted, and

(c) the court considers it is expedient that the infringing practice is prohibited or prevented immediately.

(2) The court may—

(a) make an interim enforcement order against the respondent, or

(b) accept an undertaking from the respondent to comply with subsection (5) or to take steps which the court believes will secure such compliance.

(3) If no notice of the application has been given to the respondent, the court may proceed under subsection (2)(a) only if it considers it appropriate to make an interim enforcement order without notice.

(4) An interim enforcement order is an order that—

(a) indicates the nature of the infringing practice, and

(b) directs the respondent to comply with subsection (5).

(5) The respondent complies with this subsection by—

(a) in the case of a respondent within subsection (1)(a)(i), not continuing or repeating the infringing practice (where it is alleged that the person has engaged or is engaging in that practice);

(b) in the case of a respondent within subsection (1)(a)(ii), not consenting to or conniving in the infringing practice;

(c) in either case, not engaging in the infringing practice in the course of the respondent’s business or another business;

(d) in either case, not consenting to or conniving in the carrying out of the infringing practice by a body corporate with which the respondent has a special relationship (see section 220).

(6) An application for an interim enforcement order in respect of alleged conduct of the respondent may not be made at any time after—

(a) an application for an enforcement order against the respondent in respect of that conduct is determined, or

(b) a final infringement notice in respect of that conduct has been given to the respondent (see section 182).

(7) An application for an interim enforcement order must—

(a) include all information known to the applicant that is material to the question of whether or not the application is granted;

(b) if made without notice, state why no notice has been given.

(8) The court may vary or discharge an interim enforcement order on the application of the applicant or the respondent.

(9) An interim enforcement order made in respect of conduct of the respondent is discharged—

(a) on the determination of an application for an enforcement order made against the respondent in respect of that conduct, or

(b) on the giving of a final infringement notice to the respondent in respect of that conduct.

Online interface orders and interim online interface orders

160 Applications

(1) A public designated enforcer may apply to the appropriate court for an online interface order, or an interim online interface order, if the enforcer considers that a person has engaged, is engaging or is likely to engage in a commercial practice that constitutes a relevant infringement.

(2) An application for an online interface order, or an interim online interface order, may be made in respect of—

(a) the person that the enforcer considers has engaged, is engaging or is likely to engage in a commercial practice that constitutes a relevant infringement, or

(b) any other person (subject to subsection (3)).

(3) An application under subsection (2)(b) in respect of a person who is outside the United Kingdom may be made only if the person—

(a) is a United Kingdom national,

(b) is an individual who is habitually resident in the United Kingdom,

(c) is a firm established in the United Kingdom, or

(d) carries on business in the United Kingdom or by any means directs activities in the course of carrying on a business to consumers in the United Kingdom.

(4) For the purposes of subsection (3)(c), a firm is “established in the United Kingdom” if—

(a) it is incorporated or formed under the law of a part of the United Kingdom, or

(b) it is administered under arrangements governed by the law of a part of the United Kingdom.

(5) Section 154 (CMA directions to other enforcers) applies where it appears to the CMA that another public designated enforcer intends to make an application for an online interface order, or an interim online interface order, as it applies in relation to intended applications for enforcement orders and interim enforcement orders, but for this purpose the reference to such other enforcer in subsection (2)(b) is to be taken as a reference only to such other public designated enforcer.

(6) Nothing in this section or in section 161 or 162 limits other powers under this Chapter to make enforcement orders or interim enforcement orders or to accept undertakings.

161 Online interface orders

(1) The court may make an online interface order on an application under section 160 if the court finds that—

(a) a person has engaged, is engaging or is likely to engage in a commercial practice that constitutes a relevant infringement,

(b) there are no other available means under this Chapter of bringing about the cessation or prohibition of the infringement which, by themselves, would be wholly effective, and

(c) it is necessary to make the order to avoid the risk of serious harm to the collective interests of consumers.

(2) An online interface order is an order that directs the person against whom it is made to do, or to co-operate with another person so that person can do, one or more of the following—

(a) remove content from, or modify content on, an online interface;

(b) disable or restrict access to an online interface;

(c) display a warning to consumers accessing an online interface;

(d) delete a fully qualified domain name and take any steps necessary to facilitate the registration of that domain name by the public designated enforcer that applied for the order.

(3) Where an online interface order is made, the public designated enforcer that applied for the order may publish—

(a) the order, and

(b) where known, the identity of the person who has engaged, is engaging or is likely to engage in a commercial practice which constitutes the relevant infringement.

(4) Publication under subsection (3) is to be made in such form and manner as the enforcer considers appropriate for the purpose of eliminating any continuing effects of the relevant infringement.

(5) In subsection (2) “online interface” means any software, including a website, part of a website, an application or other digital content which—

(a) is operated by a person (“P”) acting for purposes relating to P’s business or by a person acting in the name of, or on behalf of, P, and

(b) is operated for or in connection with the purposes of giving access to, or promoting, goods, services or digital content that P or another person supplies.

162 Interim online interface orders

(1) The court may make an interim online interface order against a person (“the respondent”) on an application under section 160 if—

(a) it is alleged that there has been or is likely to be a relevant infringement,

(b) it appears to the court that if the application had been an application for an online interface order it would be likely to be granted, and

(c) the court considers it expedient to bring about the cessation or prohibition of the infringement immediately.

(2) If no notice of the application has been given to the respondent—

(a) the application must state why no notice has been given, and

(b) the court may make the order only if it considers it appropriate for the order to be made without notice.

(3) An interim online interface order is an order that directs the respondent to do, or to co-operate with another person so that person can do, one or more of the following—

(a) remove content from, or modify content on, an online interface;

(b) disable or restrict access to an online interface;

(c) display a warning to consumers accessing an online interface;

(d) delete a fully qualified domain name and take any steps necessary to facilitate the registration of that domain name by the public designated enforcer that applied for the order.

In this subsection “online interface” has the meaning given by section 161(5).

(4) An application for an interim online interface order against the respondent may not be made at any time after—

(a) an application for an online interface order against the respondent in respect of the same relevant infringement is determined, or

(b) an online interface notice in respect of the same relevant infringement has been given to the respondent (see section 184).

(5) An application for an interim online interface order must include all information known to the public designated enforcer making the application that is material to the question of whether or not the application is granted.

(6) The court may vary or discharge an interim online interface order on the application of the enforcer that applied for the order or the respondent.

(7) An interim online interface order against the respondent is discharged on the determination of—

(a) an application for an online interface order made against the respondent in respect of the same relevant infringement, or

(b) an online interface notice in respect of the same relevant infringement has been given to the respondent.

Undertakings and further proceedings

163 Acceptance of undertakings by enforcers

(1) This section applies where an enforcer could make an application under section 153 for an enforcement order, or an interim enforcement order, against a person (“the respondent”) whom the enforcer believes—

(a) has engaged, is engaging or is likely to engage in a commercial practice which constitutes a relevant infringement (“the infringing practice”), or

(b) is an accessory to the infringing practice.

(2) The enforcer may accept an undertaking from the respondent to do one or more of the following—

(a) in the case of a respondent within subsection (1)(a), not to continue or repeat the infringing practice (where it is alleged that the respondent has engaged or is engaging in that practice);

(b) in the case of a respondent within subsection (1)(b), not to consent to or connive in the infringing practice;

(c) in either case, not to engage in the infringing practice in the course of the respondent’s business or another business;

(d) in either case, not to consent to or connive in the carrying out of the infringing practice by a body corporate with which the respondent has a special relationship (see section 220).

(3) See also section 164 about the inclusion of enhanced consumer measures in an undertaking under this section.

(4) Where the enforcer accepts an undertaking under subsection (2) the enforcer may publish the undertaking or accept a further undertaking from the respondent to do so.

(5) Publication under subsection (4)—

(a) must be made in such form and manner, and to such an extent, as the enforcer considers appropriate for the purpose of eliminating any continuing effects of the infringing practice;

(b) is not an enhanced consumer measure for the purposes of this Chapter.

(6) Where an enforcer has accepted from the respondent an undertaking under this section—

(a) the enforcer may accept from the respondent any such variation of the undertaking that the enforcer considers appropriate for meeting the purposes for which the undertaking was given;

(b) the enforcer may release the respondent from the undertaking (whether on its own initiative or at the respondent’s request) if the enforcer considers that the undertaking is no longer necessary to meet those purposes.

(7) Each enforcer must keep a record of—

(a) undertakings it has accepted under this section, and

(b) reviews it has carried out into the effectiveness of such undertakings.

(8) In determining for the purposes of subsection (1) whether an enforcer could make an application under section 153, section 169 is to be ignored.

164 Undertakings under section 163: enhanced consumer measures

(1) An undertaking under section 163(2) may include a requirement to take such enhanced consumer measures as the enforcer accepting the undertaking considers just and reasonable.

(2) For this purpose, the enforcer must in particular consider whether any proposed enhanced consumer measures are proportionate having regard to—

(a) the likely benefit of the measures to consumers,

(b) the costs likely to be incurred by the respondent, and

(c) the likely cost to consumers of obtaining the benefit of the measures.

(3) The costs referred to in subsection (2)(b) are—

(a) the cost of the measures, and

(b) the reasonable administrative costs associated with taking the measures.

(4) Where the respondent is required by an undertaking to take enhanced consumer measures, the undertaking may include requirements for the respondent to provide information or documents to the enforcer accepting the undertaking in order that the enforcer may determine if the respondent is taking those measures.

(5) Subsection (6) applies if—

(a) an undertaking under section 163(2) includes enhanced consumer measures offering compensation, and

(b) a settlement agreement is entered into in connection with the payment of compensation.

(6) A waiver of a person’s rights in the settlement agreement is not valid if it is a waiver of the right to bring civil proceedings in respect of conduct other than conduct which has given rise to the undertaking.

(7) This section is subject to section 177 (private designated enforcers).

165 Undertakings under section 163: procedural requirements

(1) This section applies where an enforcer proposes to—

(a) accept a material variation of an undertaking under section 163, or

(b) release the respondent from any such undertaking,

and the proposed variation or release has not been requested by the respondent.

(2) Before taking the proposed action mentioned in subsection (1) the enforcer must—

(a) give notice to the respondent under subsection (3), and

(b) consider any representations made in accordance with the notice.

(3) A notice under this subsection must state—

(a) the fact that the enforcer is proposing to act as mentioned in subsection (1),

(b) the reasons for doing so, and

(c) the means by which, and the time by which, representations may be made in relation to the proposed action.

(4) If after considering any representations made in accordance with a notice under subsection (3) an enforcer decides to take an action mentioned in subsection (1), the enforcer must give notice to the respondent of that decision.

(5) The reference in subsection (1)(a) to a material variation is a reference to any variation that the enforcer considers to be material in any respect.

166 Consumer protection orders or undertakings to court: further proceedings

(1) This section applies if the court—

(a) makes a consumer protection order against a person (“the respondent”) on an application made by an enforcer (“the original application”), or

(b) accepts an undertaking from the respondent under section 156 or 159 on the making of the original application.

(2) References in this Part to a “consumer protection order” are references to—

(a) an enforcement order,

(b) an interim enforcement order,

(c) an online interface order, or

(d) an interim online interface order.

(3) An application may (subject to subsection (7)) be made to the same court to which the original application was made in respect of a failure to comply with the order or undertaking in question—

(a) by the enforcer that made the original application, or

(b) by any other enforcer other than a private designated enforcer.

(4) An application to the court in respect of a failure to comply with an undertaking may include an application for a consumer protection order of any kind that the enforcer concerned is authorised under this Chapter to apply for.

(5) If on an application under this section the court finds that an undertaking is not being complied with, the court may do either or both of the following—

(a) make a consumer protection order (instead of making any other order it has power to make);

(b) make an order requiring the respondent to pay a monetary penalty.

(6) Where an application is made under subsection (4) for a consumer protection order—

(a) sections 154 and 160(5) (directions by CMA) and section 155 (consultation) do not apply;

(b) the application may be made only in respect of a commercial practice that the enforcer considers a person has engaged or is engaging in (and not in respect of a practice that a person is likely to engage in);

(c) a power of the court to accept an undertaking instead of making a consumer protection order does not apply,

and the preceding provisions of this Chapter apply subject to this subsection.

(7) An application may not be made under subsection (3) in the case of a failure to comply with an order or undertaking which consists only of a failure to provide information or documents required by the order or undertaking under section 157(4).

(8) In addition to any right of appeal on a point of law, a person liable to pay a penalty by virtue of an order under subsection (5)(b) may appeal in respect of—

(a) the decision to impose the penalty, or

(b) the nature or amount of the penalty.

(9) In connection with orders under subsection (5)(b), see further—

(a) section 168, which provides for the amount of penalties, and

(b) section 203, which provides for information to accompany such orders.

167 Undertakings to public designated enforcers: further proceedings

(1) This section applies where a public designated enforcer accepts an undertaking from a person (“the respondent”) under section 163.

(2) The enforcer may apply to the court in respect of a failure to comply with the undertaking.

(3) An application under subsection (2) may include an application for a consumer protection order of any kind that the enforcer concerned is authorised under this Chapter to apply for.

(4) If the court finds that the undertaking is not being complied with, the court may do either or both of the following—

(a) make a consumer protection order (instead of making any other order it has power to make);

(b) make an order requiring the respondent to pay a monetary penalty.

(5) A requirement under subsection (4)(b) to pay a monetary penalty may be imposed only if the court is satisfied that the respondent’s failure in question is without reasonable excuse.

(6) Where an application is made under subsection (2) for a consumer protection order—

(a) sections 154 and 160(5) (directions by CMA) and section 155 (consultation) do not apply;

(b) the application may be made only in respect of a commercial practice that the enforcer considers a person has engaged or is engaging in (and not in respect of a practice that a person is likely to engage in);

(c) a power of the court to accept an undertaking instead of making a consumer protection order does not apply,

and the preceding provisions of this Chapter apply subject to this subsection.

(7) An application may not be made under subsection (2) in the case of a failure to comply with an undertaking which consists only of a failure to provide information or documents under section 164(4).

(8) In addition to any right of appeal on a point of law, a person liable to pay a penalty by virtue of an order under subsection (4)(b) may appeal in respect of—

(a) the decision to impose the penalty, or

(b) the nature or amount of the penalty.

(9) In connection with orders under subsection (4)(b), see further—

(a) section 168, which provides for the amount of penalties, and

(b) section 203, which provides for information to accompany such orders.

168 Monetary penalties under sections 166 and 167: amount

(1) This section applies in relation to a monetary penalty imposed on a person (“the respondent”) by an order made under section 166 or 167.

(2) The amount of the penalty must be—

(a) a fixed amount,

(b) an amount calculated by reference to a daily rate, or

(c) a combination of a fixed amount and an amount calculated by reference to a daily rate.

(3) The penalty must not exceed—

(a) in the case of a fixed amount, £150,000 or, if higher, 5% of the total value of the turnover (if any) of the respondent;

(b) in the case of an amount calculated by reference to a daily rate, for each day £15,000 or, if higher, 5% of the total value of the daily turnover (if any) of the respondent;

(c) in the case of a fixed amount and an amount calculated by reference to a daily rate, such fixed amount and such amount per day.

(4) In imposing a penalty by reference to a daily rate—

(a) no account is to be taken of any days before notice of the application under section 166(3) or 167(2) was given to the respondent, and

(b) unless the court determines an earlier date, the amount payable ceases to accumulate on the day on which the requirements of the undertaking that the respondent has failed to comply with are complied with.

Notification of CMA

169 Notification requirements: applications

(1) This section applies to an enforcer that is not the CMA.

(2) Before making an application for a consumer protection order the enforcer—

(a) must by notice inform the CMA of its intention to do so, and

(b) may only proceed to make the application after expiry of the minimum period or, if sooner, after the CMA has by notice informed the enforcer that it consents to the making of the application.

(3) The “minimum period” is—

(a) in the case of an enforcement order or an online interface order, 14 days beginning with the day on which the notice under subsection (2)(a) is given;

(b) in the case of an interim enforcement order or an interim online interface order, 7 days beginning with the day on which the notice under subsection (2)(a) is given.

(4) Where an enforcer proceeds to make an application for a consumer protection order, the enforcer must by notice inform the CMA of the result of the application.

(5) Subsection (6) applies where the enforcer makes an application under section 166 in respect of a failure to comply with—

(a) a consumer protection order, or

(b) an undertaking given under section 156 or 159.

(6) The enforcer must by notice inform the CMA of the making of the application and of any order made by the court on the application.

170 Notification requirements: undertakings

(1) This section applies to an enforcer that is not the CMA which accepts an undertaking under section 163.

(2) The enforcer must by notice inform the CMA of—

(a) the terms of the undertaking, and

(b) the identity of the person who gave it.

171 Notification requirements: proceedings

(1) This section applies where a local weights and measures authority in England and Wales intends to start proceedings for an offence under an enactment listed in Part 1 of Schedule 15.

(2) Before starting the proceedings the authority—

(a) must by notice inform the CMA of its intention to do so, and

(b) may only start the proceedings on or after the relevant day.

(3) The “relevant day” is—

(a) the day on which the CMA notifies the authority that the CMA has received the authority’s notice given under subsection (2)(a), or

(b) if sooner, the day beginning 14 days after the day on which that notice was given.

(4) Where the authority starts the proceedings, the authority must by notice inform the CMA of outcome of the proceedings.

(5) A failure of an authority to comply with a requirement under this section does not invalidate any proceedings started by the authority.

172 Notification requirements: convictions and judgments

(1) This section applies where—

(a) a person is convicted of an offence by or before a court in the United Kingdom, or

(b) a judgment is given against a person by a court in civil proceedings in the United Kingdom.

(2) The court may make arrangements to bring the conviction or judgment to the attention of the CMA if it appears to the court—

(a) having regard to the functions of the CMA under this Chapter or Chapter 4, that it is expedient for the conviction or judgment to be brought to the attention of the CMA, and

(b) without such arrangements the conviction or judgment may not be brought to the attention of the CMA.

(3) For the purposes of subsection (2) it is immaterial whether the proceedings have been finally disposed of by the court.

(4) Judgment includes an order or decree (and references to the giving of a judgment are to be construed accordingly).

Jurisdiction etc

173 Appropriate court

(1) This section applies for the purposes of determining the appropriate court in relation to an application for, or the making of, a consumer protection order against a person (“the respondent”) in connection with a relevant infringement.

(2) If the respondent has a place of business in, or carries on business in, a part of the United Kingdom, the appropriate court is—

(a) the High Court or the county court in England and Wales, if the respondent carries on business in England and Wales or has a place of business in England and Wales;

(b) the High Court or a county court in Northern Ireland, if the respondent carries on business in Northern Ireland or has a place of business in Northern Ireland;

(c) the Court of Session or the sheriff, if the respondent carries on business in Scotland or has a place of business in Scotland.

(3) If the respondent does not have a place of business in, and does not carry on business in, any part of the United Kingdom, the appropriate court is—

(a) the High Court or the county court in England and Wales, if a relevant consumer is domiciled in England or Wales;

(b) the High Court or a county court in Northern Ireland, if a relevant consumer is domiciled in Northern Ireland;

(c) the Court of Session or the sheriff, if a relevant consumer is domiciled in Scotland.

(4) References in subsection (3) to a “relevant consumer” are to any consumer—

(a) to or for whom goods, services or digital content are supplied in connection with which the relevant infringement has, or is alleged to have, taken place,

(b) to whom activities are directed the carrying out of which constitutes, or is alleged to constitute, the relevant infringement, or

(c) from whom goods are received in connection with which the relevant infringement has, or is alleged to have, taken place.

(5) Section 41 of the Civil Jurisdiction and Judgments Act 1982 applies for the purposes of determining the part of the United Kingdom in which a relevant consumer is domiciled.

174 Effect of orders in other parts of the United Kingdom

A consumer protection order made in a part of the United Kingdom by a court specified in relation to that part in the second or third column of the Table has effect in another part of the United Kingdom as if made by a court specified in relation to that other part in the same column of the Table—

England and Wales	The High Court	The county court
Scotland	The Court of Session	The sheriff
Northern Ireland	The High Court	A county court.

175 Evidence

(1) Proceedings under this Chapter are civil proceedings for the purposes of—

(a) section 11 of the Civil Evidence Act 1968 (convictions admissible as evidence in civil proceedings);

(b) section 10 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 (corresponding provision in Scotland);

(c) section 7 of the Civil Evidence Act (Northern Ireland) 1971 (c.36 (N.I.)) (corresponding provision in Northern Ireland).

(2) In proceedings under this Chapter any finding by a court in civil proceedings that a person has engaged in infringing conduct—

(a) is admissible as evidence that the conduct has occurred;

(b) unless the contrary is proved, is sufficient evidence that the conduct has occurred.

(3) But subsection (2) does not apply to any finding—

(a) which has been reversed on appeal;

(b) which has been varied on appeal so as to negate it.

(4) For the purposes of subsection (2), a person engages in “infringing conduct” if—

(a) the person has engaged in a commercial practice that constitutes a relevant infringement, or

(b) the person is an accessory to such a practice.

Miscellaneous

176 Interconnected bodies corporate

(1) This section applies if—

(a) a court makes a consumer protection order against a body corporate (“the respondent”), and

(b) the interconnection condition applies in relation to the respondent.

(2) The interconnection condition applies in relation to the respondent if—

(a) at the time the order is made the respondent is a member of a group of interconnected bodies corporate,

(b) at any time when the order is in force the respondent becomes a member of a group of interconnected bodies corporate, or

(c) at any time when the order is in force a group of interconnected bodies corporate of which the respondent is a member is increased by the addition of one or more further members.

(3) The order may include provision for the requirements (or any particular requirements) imposed by the order to be binding upon all other members of the group (in addition to the respondent) as if each of them were the respondent.

(4) Provision may be included in an order under subsection (3) only if the court considers it just, reasonable and proportionate to include that provision.

(5) A group of interconnected bodies corporate is a group consisting of two or more bodies corporate all of whom are interconnected with each other.

(6) Any two bodies corporate are interconnected—

(a) if one of them is a subsidiary of the other, or

(b) if both of them are subsidiaries of the same body corporate.

(7) Where an order includes provision under subsection (3), a copy of the order must be given to any other member of the respondent’s group in relation to which the requirements imposed by the order are to be binding.

177 Enhanced consumer measures: private designated enforcers

(1) This section applies where—

(a) an enforcement order is made on the application of a private designated enforcer,

(b) an undertaking is given under section 156 on an application for an enforcement order made by a private designated enforcer, or

(c) an undertaking is given under section 163 to a private designated enforcer.

(2) The enforcement order or undertaking may include a requirement for the taking of any enhanced consumer measures only if both of the following conditions are met.

(3) The first condition is that the private designated enforcer is specified for the purposes of this section in regulations made by the Secretary of State.

(4) The second condition is that the enhanced consumer measures do not directly benefit the private designated enforcer or an associated undertaking.

(5) Enhanced consumer measures directly benefiting an enforcer or an associated undertaking include (for example) measures which—

(a) require a person to pay money to the enforcer or an associated undertaking;

(b) require a person to participate in a scheme, administered by the enforcer or associated undertaking, that is designed to recommend persons supplying goods, services or digital content to consumers;

(c) would give the enforcer or associated undertaking a commercial advantage over any of its competitors.

(6) An enforcer may be specified in regulations under subsection (3) only if—

(a) the functions of the enforcer under this Chapter have been specified under section 24 of the Legislative and Regulatory Reform Act 2006 (functions to which principles under section 21 and code of practice under section 22 apply), so far as capable of being so specified, and

(b) the Secretary of State is satisfied that to do so is likely to—

(i) improve the availability to consumers of redress for relevant infringements,

(ii) improve the availability to consumers of information which enables them to choose more effectively between persons supplying goods, services or digital content, or

(iii) improve compliance with consumer law.

(7) Subsection (8) applies if—

(a) an enforcer exercises a function in relation to a person by virtue of this section,

(b) the function is a relevant function for the purposes of Part 2 of the Regulatory Enforcement and Sanctions Act 2008 (co-ordination of regulatory enforcement), and

(c) a primary authority (within the meaning of that Part) has given advice or guidance under section 24A(1) or (2) of that Act—

(i) to that person in relation to the function, or

(ii) to other local authorities (within the meaning of that Part) with that function as to how they should exercise it in relation to that person.

(8) The enforcer must have regard to the advice or guidance in exercising the function in relation to that person.

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

(10) In this section “associated undertaking”, in relation to a private designated enforcer, means—

(a) a parent undertaking or subsidiary undertaking of the enforcer, or

(b) a subsidiary undertaking of a parent undertaking of the enforcer,

and for this purpose “parent undertaking” and “subsidiary undertaking” have the meanings given by section 1162 of the Companies Act 2006.

178 Substantiation of claims

(1) This section applies where an application for a consumer protection order is made to a court in respect of a relevant infringement involving a contravention of Chapter 1 of Part 4 (protection from unfair trading).

(2) The court may, for the purpose of considering the application, require a respondent to provide evidence as to the accuracy of any factual claim made as part of a commercial practice of the respondent.

(3) The court may find that a factual claim of a respondent is inaccurate if—

(a) the respondent fails to provide evidence of the accuracy of the claim in response to a requirement imposed under subsection (2), or

(b) the court considers that any such evidence that is provided is inadequate.

(4) In this section “respondent”, in relation to an application for a consumer protection order, means—

(a) where the application is for an enforcement order or an interim enforcement order, the person against whom the order is sought;

(b) where the application is for an online interface order or an interim online interface order, the person against whom the order is sought or another person who is a party to the proceedings.

179 Crown application

(1) Subject to subsection (2), this Chapter binds the Crown.

(2) The Crown is not liable for any monetary penalty imposed by virtue of this Chapter.

Chapter 4 Direct enforcement powers of CMA

Investigations

180 Power of CMA to investigate suspected infringements

(1) This section applies where the CMA has reasonable grounds for suspecting that—

(a) a person has engaged, is engaging or is likely to engage in a commercial practice that constitutes a relevant infringement, or

(b) a person is an accessory to such a practice.

(2) The CMA may conduct an investigation into the matter.

(3) Where the CMA conducts an investigation, it may publish a notice which (among other things) may—

(a) state its decision to conduct the investigation,

(b) summarise the matter under investigation (including the industry sectors affected),

(c) identify, so far as possible, the persons under investigation (including whether they are suspected of falling within subsection (1)(a) or (b)), and

(d) indicate the timetable for the conduct of the investigation.

(4) If after giving a notice under subsection (3) the CMA decides to close an investigation, the CMA must publish a notice confirming that the investigation is to be closed.

Infringement notices and penalties

181 Provisional infringement notice

(1) This section applies where—

(a) the CMA has started an investigation under section 180 that is continuing, and

(b) the condition in subsection (2) is met in respect of any person (“the respondent”) who is subject to the investigation.

(2) The condition in this subsection is met in respect of the respondent if the CMA has reasonable grounds to believe that—

(a) the respondent has engaged, is engaging or is likely to engage in a commercial practice constituting a relevant infringement (“the infringing practice”), or

(b) the respondent is an accessory to such a practice.

(3) The CMA may give to the respondent a notice under this section (a “provisional infringement notice”).

(4) A provisional infringement notice must—

(a) set out the grounds on which it is given, including the respondent’s acts or omissions giving rise to the CMA’s belief that the condition in subsection (2) is met;

(b) set out proposed directions for the purposes of securing that the respondent complies with subsection (5);

(c) invite the respondent to make representations to the CMA about the giving of the notice;

(d) specify the means by which, and the time by which, such representations must be made.

(5) The respondent complies with this subsection by—

(a) in the case of a respondent within subsection (2)(a), not continuing or repeating the infringing practice (where it is believed that the respondent has engaged or is engaging in that practice);

(b) in the case of a respondent within subsection (2)(b), not consenting to or conniving in the infringing practice;

(c) in either case, not engaging in the infringing practice in the course of the respondent’s business or another business;

(d) in either case, not consenting to or conniving in the carrying out of the infringing practice by a body corporate with which the respondent has a special relationship (see section 220).

(6) If the proposed directions mentioned in subsection (4)(b) include the taking by the respondent of enhanced consumer measures, the notice must state that fact and include details of the proposed measures to be taken (but section 183 applies in respect of any such proposed measures specified in a provisional infringement notice as that section applies to such measures specified in a final infringement notice).

(7) The means specified under subsection (4)(d) for making representations must include arrangements for them to be made orally if the respondent chooses to make representations in that way.

(8) If the CMA is considering the imposition of a monetary penalty on the respondent (see section 182(4)(b)), the provisional infringement notice must also state—

(a) that the CMA is considering imposing a monetary penalty;

(b) the proposed amount of the penalty;

(c) any further factors (in addition to those provided under subsection (4)(a)) which the CMA considers may justify the imposition of the proposed penalty and its amount.

182 Final infringement notice

(1) This section applies where—

(a) the CMA has given to the respondent a provisional infringement notice under section 181,

(b) the time for the respondent to make representations to the CMA in accordance with that notice has expired, and

(c) after considering such representations (if any), the CMA is satisfied that—

(i) the respondent has engaged, is engaging or is likely to engage in a commercial practice constituting a relevant infringement, or

(ii) the respondent is an accessory to such a practice.

(2) The CMA may give to the respondent a notice under this section (a “final infringement notice”).

(3) In deciding whether to give a final infringement notice the CMA must, in particular, have regard to whether the respondent has previously given an undertaking under this Chapter or Chapter 3 in respect of the acts or omissions in relation to which the final infringement notice would be given.

(4) A final infringement notice may impose on the respondent a requirement to do either or both of the following—

(a) a requirement to comply with such directions as the CMA considers appropriate for or in connection with the purpose of securing that the respondent complies with section 181(5) (which may include directions to take enhanced consumer measures in accordance with section 183);

(b) subject to subsection (5), a requirement to pay a monetary penalty.

(5) In the case of a respondent within subsection (1)(c)(i), a requirement to pay a monetary penalty may be imposed only if the CMA is satisfied that the respondent has engaged, or is engaging, in a commercial practice constituting a relevant infringement (and not in respect of a practice that the CMA is satisfied that the person is likely to engage in).

(6) The amount of a monetary penalty imposed under subsection (4)(b) must be a fixed amount not exceeding £300,000 or, if higher, 10% of the total value of the turnover (if any) of the respondent.

(7) A final infringement notice must—

(a) set out the grounds on which it is given, including the respondent’s acts or omissions on account of which the notice is given;

(b) state any further factors (in addition to those provided under paragraph (a)) which the CMA considers justify the giving of the notice;

(c) if a penalty is imposed by the notice under subsection (4)(b), contain the monetary penalty information (see section 203);

(d) state that the respondent has a right to appeal against the notice and the main details of that right (so far as not stated in accordance with paragraph (c)).

(8) A final infringement notice may require the respondent to publish—

(a) the notice;

(b) a corrective statement.

(9) Publication under subsection (8) must be made in such form and manner, and to such extent, as the CMA considers appropriate for the purpose of eliminating any continuing effects of the relevant infringement.

183 Final infringement notice: directions to take enhanced consumer measures

(1) Directions contained in a final infringement notice may include directions requiring the respondent to take such enhanced consumer measures as the CMA considers just and reasonable.

(2) For this purpose, in deciding whether to require the taking of enhanced consumer measures the CMA must in particular consider whether any proposed enhanced consumer measures are proportionate having regard to—

(a) the likely benefit of the measures to consumers,

(b) the costs likely to be incurred by the respondent, and

(c) the likely cost to consumers of obtaining the benefit of the measures.

(3) The costs referred to in subsection (2)(b) are—

(a) the cost of the measures, and

(b) the reasonable administrative costs associated with taking the measures.

(4) Where the respondent is required by a final infringement notice to take enhanced consumer measures, the notice may include requirements for the respondent to provide information or documents to the CMA in order that the CMA may determine if the respondent is taking those measures.

(5) Subsection (6) applies if—

(a) a final infringement notice requires the taking of enhanced consumer measures offering compensation, and

(b) a settlement agreement is entered into in connection with the payment of compensation.

(6) A waiver of a person’s rights in the settlement agreement is not valid if it is a waiver of the right to bring civil proceedings in respect of conduct other than conduct which has given rise to the final infringement notice.

Online interface notices

184 Online interface notices

(1) This section applies where the CMA is satisfied that a person has engaged, is engaging or is likely to engage in a commercial practice that constitutes a relevant infringement.

(2) The CMA may give a notice under this section (an “online interface notice”) to—

(a) the person that the CMA is satisfied has engaged, is engaging or is likely to engage in the commercial practice constituting the relevant infringement, or

(b) any other person (subject to subsection (3)).

(3) A notice under subsection (2)(b) may be given to a person who is outside the United Kingdom only if the person—

(a) is a United Kingdom national,

(b) is an individual who is habitually resident in the United Kingdom,

(c) is a firm established in the United Kingdom, or

(d) carries on business in the United Kingdom or by any means directs activities in the course of carrying on a business to consumers in the United Kingdom.

(4) An online interface notice may contain whatever directions the CMA considers appropriate for the purpose of requiring the person to whom it is given to do, or to co-operate with another person so that person can do, one or more of the following—

(a) remove content from, or modify content on, an online interface;

(b) disable or restrict access to an online interface;

(c) display a warning to consumers accessing an online interface;

(d) delete a fully qualified domain name and take any steps necessary to facilitate the registration of that domain name by the CMA.

(5) An online interface notice may be given to a person only if the CMA is satisfied that—

(a) there are no other available means under section 162 or under another provision of this Chapter of bringing about the cessation or prohibition of the infringement which, by themselves, would be wholly effective, and

(b) it is necessary for the directions contained in the notice to be given to avoid the risk of serious harm to the collective interests of consumers.

(6) An online interface notice must—

(a) set out the grounds on which it is given;

(b) state that the respondent has the right to appeal against the notice and the main details of that right.

(7) Where an online interface notice is given, the CMA may publish—

(a) the notice, and

(b) where known, the identity of the person who has engaged, is engaging or is likely to engage in a commercial practice which constitutes the relevant infringement.

(8) Publication under subsection (7) must be made in such form and manner as the CMA considers appropriate for the purpose of eliminating any continuing effects of the relevant infringement.

(9) For the purposes of subsection (3)(c), a firm is “established in the United Kingdom” if—

(a) it is incorporated or formed under the law of a part of the United Kingdom, or

(b) it is administered under arrangements governed by the law of a part of the United Kingdom.

(10) In subsection (4) “online interface” means any software, including a website, part of a website, an application or other digital content which—

(a) is operated by a person (“P”) acting for purposes relating to P’s business or by a person acting in the name of, or on behalf of, P, and

(b) is operated for or in connection with the purposes of giving access to, or promoting, the goods, services or digital content that P or another person supplies.

Undertakings

185 Undertakings

(1) This section applies where the CMA—

(a) has started an investigation under section 180 which is continuing, and

(b) has not given a final infringement notice or an online interface notice in relation to the matter under investigation.

(2) The CMA may accept an undertaking under this section in connection with that matter from any person whom the CMA believes—

(a) has engaged, is engaging or is likely to engage in a commercial practice that constitutes a relevant infringement (“the infringing practice”), or

(b) is an accessory to such a practice.

(3) Subsections (1) to (6) of section 164 (inclusion of enhanced consumer measures in undertakings) apply to an undertaking under this section as they apply to an undertaking under section 163(2).

(4) An undertaking under this section is an undertaking to do one or more of the following—

(a) in the case of an undertaking from a person within subsection (2)(a), not to continue or repeat the infringing practice (where the CMA believes the person has engaged or is engaging in the practice);

(b) in the case of an undertaking from a person within subsection (2)(b), not to consent to or connive in the infringing practice;

(c) in either case, not to engage in the infringing practice in the course of the person’s business or another business;

(d) in either case, not to consent to, or connive in, the carrying out of the infringing practice by a body corporate with which the person has a special relationship (see section 220).

(5) Where the CMA has accepted from a person an undertaking under this section—

(a) the CMA may accept from the person any such variation of the undertaking that the CMA considers appropriate for meeting the purposes for which the undertaking was given;

(b) the CMA may release the person from the undertaking (whether on its own initiative or at the person’s request) if the CMA considers that the undertaking is no longer necessary to further those purposes.

(6) The powers of the CMA under this section do not limit other powers of the CMA to accept, vary or release undertakings under Chapter 3.

186 Effect of undertakings under section 185

(1) This section applies where the CMA accepts an undertaking from a person under section 185 in connection with a matter that it was investigating under section 180.

(2) The CMA may not give a final infringement notice or an online interface notice to the person in relation to the matter.

(3) Subsection (2) does not prevent the CMA from giving a final infringement notice or an online interface notice to the person—

(a) if and to the extent that the notice relates to anything not addressed by the acceptance of the undertaking mentioned in subsection (1);

(b) if the CMA considers that there has been a material change of circumstances since the undertaking was accepted;

(c) if the CMA has reasonable grounds for suspecting that a person from whom the undertaking was accepted has failed to adhere to one or more of the terms of the undertaking;

(d) if the CMA has reasonable grounds for suspecting that information which led it to accept the undertaking was incomplete, false or misleading in a material way.

(4) If the CMA gives a final infringement notice or an online interface notice by virtue of subsection (3)(b), (c) or (d), the undertaking is to be treated as released as from the date on which the notice is given.

187 Undertakings under section 185: procedural requirements

(1) This section applies where the CMA proposes to—

(a) accept a material variation of an undertaking under section 185, or

(b) release a person from any such undertaking,

and the proposed variation or release has not been requested by the person who gave the undertaking.

(2) Before taking the proposed action mentioned in subsection (1) the CMA must—

(a) give notice to the person under subsection (3), and

(b) consider any representations made in accordance with the notice.

(3) A notice under this subsection must state—

(a) the fact that the CMA is proposing to act as mentioned in subsection (1),

(b) the reasons for doing so, and

(c) the means by which, and the time by which, representations may be made in relation to the proposed action.

(4) If after considering any representations made in accordance with a notice under subsection (3) the CMA decides to take an action mentioned in subsection (1), the CMA must give notice to the person of that decision.

(5) The reference in subsection (1)(a) to a material variation is a reference to any variation that the CMA considers to be material in any respect.

188 Provisional breach of undertakings enforcement notice

(1) This section applies where—

(a) the CMA has accepted an undertaking from a person (“the respondent”) under section 185, and

(b) the CMA has reasonable grounds to believe that the respondent has failed to comply with one or more of the terms of the undertaking.

(2) The CMA may give to the respondent a notice under this section (a “provisional breach of undertakings enforcement notice”).

(3) A provisional breach of undertakings enforcement notice must—

(a) set out the grounds on which it is given, including the respondent’s alleged acts or omissions giving rise to the belief mentioned in subsection (1)(b);

(b) set out proposed directions for the purpose of securing that the respondent complies with subsection (5);

(c) invite the respondent to make representations to the CMA about the giving of the notice;

(d) specify the means by which, and the time by which, such representations must be made.

(4) The means specified under subsection (3)(d) for making representations must include arrangements for them to be made orally if the respondent chooses to make representations in that way.

(5) The respondent complies with this subsection by—

(a) in the case of a respondent within section 185(2)(a), not continuing or repeating the infringing practice (where it is believed that the respondent has engaged or is engaging in that practice);

(b) in the case of a respondent within section 185(2)(b), not consenting to or conniving in the infringing practice;

(c) in either case, not engaging in the infringing practice in the course of the respondent’s business or another business;

(d) in either case, not consenting to or conniving in the carrying out of the infringing practice by a body corporate with which the respondent has a special relationship (see section 220).

(6) If the CMA is considering the imposition of a monetary penalty on the respondent (see section 189(3)(b)), the provisional breach of undertakings enforcement notice must also state—

(a) that the CMA is considering imposing a monetary penalty;

(b) the proposed amount of the penalty (including whether the penalty would be a fixed amount, an amount calculated by reference to a daily rate or both a fixed amount and an amount calculated by reference to a daily rate);

(c) any further factors (in addition to those provided under subsection (3)(a)) which the CMA considers justify the imposition of the proposed penalty and its amount or amounts.

189 Final breach of undertakings enforcement notice

(1) This section applies where—

(a) the CMA has given to the respondent a provisional breach of undertakings enforcement notice under section 188,

(b) the time for the respondent to make representations to the CMA in accordance with that notice has expired, and

(c) after considering such representations (if any), the CMA is satisfied that the respondent has failed to comply with one or more of the terms of the undertaking.

(2) The CMA may give to the respondent a notice under this section (a “final breach of undertakings enforcement notice”).

(3) A final breach of undertakings enforcement notice may, subject to subsection (4), impose on the respondent a requirement to do either or both of the following—

(a) to comply with such directions as the CMA considers appropriate for the purpose of securing that the respondent complies with section 188(5);

(b) to pay a monetary penalty in respect of the failure mentioned in subsection (1)(c).

(4) A requirement under subsection (3)(b) to pay a monetary penalty may be imposed only if the CMA is satisfied that the failure in question is without reasonable excuse.

(5) A final breach of undertakings enforcement notice must—

(a) set out the grounds on which it is given, including the respondent’s acts or omissions giving rise to the failure mentioned in subsection (1)(c);

(b) state any further factors (in addition to those provided under paragraph (a)) which the CMA considers justify the giving of the notice;

(c) if directions are given under subsection (3)(a), specify the actions to be taken by the respondent in accordance with the directions;

(d) if a penalty is imposed under subsection (3)(b), specify the monetary penalty information (see section 203);

(e) state that the respondent has a right to appeal against the notice and the main details of that right (so far as not stated in accordance with paragraph (d)).

(6) The CMA may publish a final breach of undertakings enforcement notice in such manner, and to such extent, as the CMA considers appropriate.

190 Monetary penalties under section 189: amount

(1) This section applies in relation to a requirement imposed on the respondent to pay a monetary penalty under a final breach of undertakings enforcement notice.

(2) The amount of the penalty must be—

(a) a fixed amount,

(b) an amount calculated by reference to a daily rate, or

(c) a combination of a fixed amount and an amount calculated by reference to a daily rate.

(3) The penalty must not exceed—

(a) in the case of a fixed amount, £150,000 or, if higher, 5% of the total value of the turnover (if any) of the respondent;

(b) in the case of an amount calculated by reference to a daily rate, for each day £15,000 or, if higher, 5% of the total value of the daily turnover (if any) of the respondent;

(c) in the case of a fixed amount and an amount calculated by reference to a daily rate, such fixed amount and such amount per day.

(4) In imposing a penalty by reference to a daily rate—

(a) no account is to be taken of any days before the date on which the provisional breach of undertakings enforcement notice was given to the respondent, and

(b) unless the CMA determines an earlier date, the amount payable ceases to accumulate on the day on which the requirements of the final breach of undertakings enforcement notice are complied with.

Directions

191 Provisional breach of directions enforcement notice

(1) This section applies where—

(a) an enforcement direction has been given to a person (“the respondent”), and

(b) the CMA has reasonable grounds to believe that the respondent has without reasonable excuse failed to comply with the direction (fully or to any respect).

(2) The CMA may give to the respondent a notice under this section (a “provisional breach of directions enforcement notice”).

(3) A provisional breach of directions enforcement notice must—

(a) set out the grounds on which it is given, including the respondent’s acts or omissions giving rise to the belief mentioned in subsection (1)(b);

(b) set out proposed directions for the purpose of securing that the respondent complies with the direction;

(c) invite the respondent to make representations to the CMA about the giving of the notice;

(d) specify the means by which, and the time by which, such representations must be made.

(4) The means specified under subsection (3)(d) for making representations must include arrangements for them to be made orally if the respondent chooses to make representations in that way.

(5) A provisional breach of directions enforcement notice must also state—

(a) that the CMA is considering imposing a monetary penalty;

(b) the proposed amount of the penalty (including whether the penalty would be a fixed amount, an amount calculated by reference to a daily rate or both a fixed amount and an amount calculated by reference to a daily rate);

(c) any further factors (in addition to those provided under subsection (3)(a)) which the CMA considers justify the imposition of the proposed penalty and its amount or amounts.

(6) In this Chapter “enforcement direction” means a direction given in—

(a) a final infringement notice,

(b) an online interface notice, or

(c) a final breach of undertakings enforcement notice.

192 Final breach of directions enforcement notice

(1) This section applies where—

(a) the CMA has given to the respondent a provisional breach of directions enforcement notice under section 191 in respect of a suspected failure to comply with an enforcement direction,

(b) the time for the respondent to make representations to the CMA in accordance with that notice has expired, and

(c) after considering such representations (if any), the CMA is satisfied that the respondent has, without reasonable excuse, failed to comply with the direction.

(2) The CMA may give to the respondent a notice under this section (a “final breach of directions enforcement notice”).

(3) A final breach of directions enforcement notice is a notice that imposes on the respondent a requirement to pay a monetary penalty.

(4) A final breach of directions enforcement notice must—

(a) set out the grounds on which it is given, including the respondent’s acts or omissions giving rise to the failure mentioned in subsection (1)(c);

(b) state any further factors (in addition to those provided under paragraph (a)) which the CMA considers justify the giving of the notice;

(c) specify the monetary penalty information (see section 203).

(5) A final breach of directions enforcement notice may—

(a) vary or revoke the enforcement direction mentioned in subsection (1);

(b) specify such other directions as the CMA considers appropriate for the purpose of securing that the respondent complies with the requirements in respect of which the enforcement direction was given.

(6) Where a final breach of directions enforcement notice includes provision under subsection (5) that varies an enforcement direction or specifies other directions, the notice must (in addition to the requirements under subsection (4)) also state that the respondent has a right to appeal against the notice and the main details of that right.

(7) The CMA may publish a final breach of directions enforcement notice in such manner, and to such extent, as the CMA considers appropriate.

193 Monetary penalties under section 192: amount

(1) This section applies in relation to a requirement imposed on the respondent to pay a monetary penalty under a final breach of directions enforcement notice.

(2) The amount of the penalty must be—

(a) a fixed amount,

(b) an amount calculated by reference to a daily rate, or

(c) a combination of a fixed amount and an amount calculated by reference to a daily rate.

(3) The penalty imposed on a person must not exceed—

(a) in the case of a fixed amount, £150,000 or, if higher, 5% of the total value of the turnover (if any) of the respondent;

(b) in the case of an amount calculated by reference to a daily rate, for each day £15,000 or, if higher, 5% of the total value of the daily turnover (if any) of the respondent;

(c) in the case of a fixed amount and an amount calculated by reference to a daily rate, such fixed amount and such amount per day.

(4) In imposing a penalty by reference to a daily rate—

(a) no account is to be taken of any days before the date on which the provisional breach of directions enforcement notice was given to the respondent, and

(b) unless the CMA determines an earlier date, the amount payable ceases to accumulate on the day on which the relevant directions are fully complied with.

(5) In subsection (4)(b) the “relevant directions” are—

(a) the enforcement direction mentioned in section 192(1)(a) (if not revoked under section 192(5)(a));

(b) any further directions specified under section 192(5)(b).

194 Powers of court to enforce directions

(1) This section applies where the CMA considers that a person (“the respondent”) has failed to comply with—

(a) an enforcement direction, or

(b) a direction given in a final breach of directions enforcement notice under section 192(5)(b).

(2) The CMA may make an application to the appropriate court under this section.

(3) If on an application under subsection (2) the court finds that the respondent has failed to comply with the direction concerned, the court may make an order imposing such requirements on the respondent as the court considers appropriate for the purpose of remedying the failure.

(4) An order under this section may provide for all of the costs or expenses of, and incidental to, the application for the order to be met by the respondent or any officer of a person that is responsible for the respondent’s failure to comply with the direction.

(5) Nothing in this section limits the powers of the court to make orders under Chapter 3 or otherwise (and an application under this section may be combined with an application under that Chapter for a consumer protection order).

(6) The following provisions of Chapter 3 apply to an order under this section as if the order were a consumer protection order—

(a) section 173 (appropriate court);

(b) section 174 (effect of orders in other parts of the United Kingdom);

(c) section 178 (substantiation of claims).

195 Substantiation of claims

(1) This section applies where—

(a) the CMA gives a provisional notice under this Chapter to a person (“the respondent”) in respect of a relevant infringement involving a contravention of Chapter 1 of Part 4 (protection from unfair trading), and

(b) the respondent makes representations to the CMA in response to that notice.

(2) The CMA may, for the purpose of considering the representations, require the respondent to provide evidence as to the accuracy of any factual claim made as part of a commercial practice of the respondent.

(3) The CMA may determine that a factual claim of the respondent is inaccurate if—

(a) the respondent fails to provide evidence of the accuracy of the claim in response to a requirement imposed under subsection (2), or

(b) the CMA considers that any such evidence that is provided is inadequate.

(4) In this section “provisional notice” means—

(a) a provisional infringement notice,

(b) a provisional breach of undertakings enforcement notice, or

(c) a provisional breach of directions enforcement notice.

196 Variation or revocation of directions

(1) This section applies where the CMA proposes to—

(a) make a material variation of an enforcement direction given to a person (“the respondent”), or

(b) revoke any such direction.

(2) Before taking the proposed action mentioned in subsection (1) the CMA must—

(a) give notice to the respondent under subsection (3), and

(b) consider any representations made in accordance with the notice.

(3) A notice under this subsection must state—

(a) the fact that CMA is proposing to act as mentioned in subsection (1),

(b) the reasons for doing so, and

(c) the means by which, and the time by which, representations may be made in relation to the proposed variation or revocation.

(4) If after considering any representations made in accordance with a notice under subsection (3) the CMA decides to take the action mentioned in subsection (1), the CMA must give notice to the respondent of that decision.

(5) The reference in subsection (1)(a) to a material variation is a reference to any variation that the CMA considers to be material in any respect.

(6) In this section “enforcement direction” includes a direction given in a notice under section 192(5)(b).

False or misleading information

197 Provisional false information enforcement notice

(1) This section applies if—

(a) the CMA has reasonable grounds to believe that a person (“the respondent”) has, without reasonable excuse, provided information to the CMA that is materially false or misleading, and

(b) the information was provided in connection with the carrying out by the CMA of a direct enforcement function.

(2) The CMA may give to the respondent a notice under this section (a “provisional false information enforcement notice”).

(3) A provisional false information enforcement notice must—

(a) set out the grounds on which it is given;

(b) state that the CMA is considering imposing a monetary penalty;

(c) state the proposed amount of the penalty;

(d) state any further factors (in addition to those provided under paragraph (a)) which the CMA considers justify the imposition of the proposed penalty and its amount;

(e) invite the respondent to make representations to the CMA about the giving of the notice;

(f) specify the means by which, and the time by which, such representations must be made.

(4) The means specified under subsection (3)(f) for making representations must include arrangements for them to be made orally if the respondent chooses to make representations in that way.

(5) In this Part “direct enforcement function” means—

(a) a function of the CMA under this Chapter, or

(b) a function of the CMA under paragraph 16B or 16C of Schedule 5 to CRA 2015.

198 Final false information enforcement notice

(1) This section applies where—

(a) the CMA has given to the respondent a provisional false information enforcement notice under section 197 in connection with the provision of information,

(b) the time for the respondent to make representations to the CMA in accordance with the notice has expired, and

(c) after considering such representations (if any), the CMA is satisfied that—

(i) the information mentioned in paragraph (a) is materially false or misleading, and

(ii) the respondent provided the false or misleading information without reasonable excuse.

(2) The CMA may give to the respondent a notice under this section (“a final false information enforcement notice”).

(3) A final false information enforcement notice is a notice that imposes on the respondent a requirement to pay a monetary penalty.

(4) The amount of the penalty must be a fixed amount not exceeding £30,000 or, if higher, 1% of the total value of the turnover (if any) of the respondent.

(5) A final false information enforcement notice must—

(a) set out the grounds on which it is given;

(b) state any further factors (in addition to those provided under paragraph (a)) which the CMA considers justify the giving of the notice;

(c) specify the monetary penalty information (see section 203).

(6) The CMA may publish a final false information enforcement notice in such manner, and to such extent, as the CMA considers appropriate.

Miscellaneous and appeals

199 Statement of policy in relation to monetary penalties

(1) The CMA must prepare and publish a statement of policy in relation to the exercise of powers to impose a monetary penalty under this Chapter.

(2) The statement must include a statement about the considerations relevant to the determination of—

(a) whether to impose a penalty under this Chapter, and

(b) the nature and amount of any such penalty.

(3) The CMA may revise its statement of policy and, where it does so, must publish the revised statement.

(4) In preparing or revising its statement of policy the CMA must consult—

(a) the Secretary of State, and

(b) such other persons as the CMA considers appropriate.

(5) A statement of policy, or revised statement, may not be published under this section without the approval of the Secretary of State.

(6) Subsection (7) applies where the CMA proposes to impose under this Chapter a monetary penalty on a person.

(7) The CMA must have regard to the statement of policy most recently published under this section at the time of the act or omission giving rise to the penalty in deciding—

(a) whether to impose the penalty, and

(b) if so, the nature and amount of the penalty.

200 Interconnected bodies corporate

(1) This section applies where—

(a) the CMA gives to a body corporate (“the respondent”) a final notice, and

(b) the interconnection condition applies in relation to the respondent.

(2) The interconnection condition applies in relation to the respondent if—

(a) at the time the final notice is given, the respondent is a member of a group of interconnected bodies corporate,

(b) at any time when requirements imposed by the final notice remain in force, the respondent becomes a member of a group of interconnected bodies corporate, or

(c) at any time when requirements imposed by the final notice remain in force, a group of interconnected bodies corporate of which the respondent is a member is increased by the addition of one or more further members.

(3) The notice may include provision for the requirements (or any particular requirements) imposed by the final notice on the respondent also to be binding upon all other members of the group (in addition to the respondent), as if each of them were the respondent.

(4) Provision may be included in a notice under subsection (3) only if the CMA considers it just, reasonable and proportionate to include that provision.

(5) A group of interconnected bodies corporate is a group consisting of two or more bodies corporate all of whom are interconnected with each other.

(6) Any two bodies corporate are interconnected—

(a) if one of them is a subsidiary of the other, or

(b) if both of them are subsidiaries of the same body corporate.

(7) Where a final notice includes provision under subsection (3), the notice must also be given to any other member of the respondent’s group in relation to which the requirements imposed by the notice are to be binding.

(8) In this section “final notice” means—

(a) a final infringement notice,

(b) an online interface notice, or

(c) a final breach of directions enforcement notice.

201 Record-keeping and reporting requirements

(1) The CMA must keep a record of—

(a) undertakings it has accepted and enforcement directions it has given, and

(b) reviews it has carried out in relation to the effectiveness of such undertakings and directions.

(2) If requested to do so by the Secretary of State, the CMA must prepare a report on—

(a) the effectiveness of undertakings and enforcement directions, and

(b) the number and outcome of appeals brought under section 202.

(3) The CMA must—

(a) provide to the Secretary of State a report prepared under this section, and

(b) publish the report in such manner as the CMA considers appropriate.

(4) In this section—

(a) “undertakings” means undertakings given under section 185;

(b) “enforcement directions” includes directions given in a notice under section 192(5)(b).

202 Appeals

(1) A person to whom a relevant notice is given may appeal to the appropriate appeal court against—

(a) a decision to impose a monetary penalty by virtue of the notice,

(b) the nature or amount of any such penalty, or

(c) the giving of directions by virtue of the notice.

(2) The grounds for an appeal under subsection (1)(a) or (b) are that—

(a) the decision to impose a monetary penalty was based on an error of fact,

(b) the decision was wrong in law,

(c) the amount of the penalty is unreasonable, or

(d) the decision was unreasonable or wrong for any other reason.

(3) The grounds for an appeal under subsection (1)(c) are that—

(a) the decision to give the directions was based on an error of fact,

(b) the decision was wrong in law,

(c) the nature of the directions is unreasonable, or

(d) the decision was unreasonable or wrong for any other reason.

(4) On an appeal under this section the appropriate appeal court may quash, confirm or vary the relevant notice.

(5) Except in the case of an appeal relating to a final false information enforcement notice, in addition to the powers conferred by subsection (4) the appropriate appeal court may also remit any matter that is the subject of the appeal to the CMA.

(6) An appeal under this section must be brought before the end of the applicable period beginning with the day on which the relevant notice was given to the person seeking to bring the appeal.

(7) The appropriate appeal court may extend the applicable period for bringing an appeal.

(8) Where an appeal is brought in respect of—

(a) a requirement to pay a monetary penalty, or

(b) a requirement to pay compensation under directions imposing enhanced consumer measures,

the penalty or compensation is not required to be paid until after the appeal is determined, withdrawn or otherwise dealt with.

(9) In this section—

• “applicable period” means—

  (a)

  in relation to a final false information enforcement notice, the period of 28 days;

  (b)

  in relation to any other relevant notice, the period of 60 days;

• “appropriate appeal court” means—

  (a)

  in relation to England and Wales or Northern Ireland, the High Court;

  (b)

  in relation to Scotland, the Outer House of the Court of Session;

• “relevant notice” means—

  (a)

  a final infringement notice,

  (b)

  an online interface notice,

  (c)

  a final breach of undertakings enforcement notice,

  (d)

  a final breach of directions enforcement notice, or

  (e)

  a final false information enforcement notice.

Chapter 5 Monetary penalties: general provisions

203 Information to accompany orders or notices imposing monetary penalties

(1) An order or notice under Chapter 3 or 4 under which a person (“the respondent”) is required to pay a monetary penalty must state the following information (referred to in those Chapters as the “monetary penalty information”)—

(a) the amount of the penalty (including whether it is a fixed amount, an amount calculated by reference to a daily rate or both a fixed amount and an amount calculated by reference to a daily rate);

(b) the grounds on which the penalty is imposed together with any other factors that the court (in the case of an order) or the CMA (in the case of a notice) considers justify the giving of the penalty or its amount;

(c) in the case of an amount calculated by reference to a daily rate, the day on which the amount first starts to accumulate and the day or days on which it might cease to accumulate;

(d) how the penalty is to be paid;

(e) the date or dates, no earlier than the end of the applicable period beginning with the date on which the order was served on or the notice was given to the respondent, by which the penalty or (as the case may be) different portions of it are required to be paid;

(f) that the penalty or (as the case may be) different portions of it may be paid earlier than the date or dates by which it or they are required to be paid;

(g) that the respondent has the right to apply under subsection (3) (in the case of an order) or subsection (4) (in the case of a notice);

(h) the rights available to the respondent to appeal in respect of the imposition of the penalty;

(i) the main details of the rights mentioned in paragraphs (g) and (h).

(2) In subsection (1)(e) “the applicable period” means—

(a) in the case of an order or a final false information enforcement notice, the period of 28 days;

(b) in any other case, the period of 60 days.

(3) The respondent may, within 14 days of the date on which an order imposing a monetary penalty is served on the respondent, apply to the court for the court to specify a different date or dates by which the penalty, or different portions of it, are to be paid.

(4) The respondent may, within 14 days of the date on which a notice imposing a monetary penalty is given to the respondent, apply to the CMA to specify a different date or dates by which the penalty, or different portions of it, are required to be paid.

(5) References in subsections (1) and (2) to an order include references to a notice accompanying such an order given under section 158(4).

(6) In the application of this section to Scotland, the references in subsections (1)(e) and (3) to an order being served include service of an extract order in execution of or diligence on the order.

204 Determination of turnover

(1) In this Part references to “turnover” of a person include—

(a) turnover both in and outside the United Kingdom;

(b) where the person controls another person, the turnover of that other person;

(c) where the person is controlled by another person, the turnover of that person.

(2) The Secretary of State may by regulations—

(a) make provision for determining when a person is to be treated as controlled by another person for the purposes of subsection (1)(b) and (c);

(b) make provision for determining the turnover of a person for the purposes of this Part.

(3) Regulations under this section may, in particular, make provision as to—

(a) the amounts which are, or which are not, to be treated as comprising a person’s turnover or daily turnover;

(b) the date or dates by reference to which a person’s turnover or daily turnover is to be determined.

(4) Regulations under this section may include provision enabling the court or the CMA to determine matters of a description specified in the regulations (including any of the matters mentioned in paragraphs (a) and (b) of subsection (3)).

(5) Regulations under this section are subject to the negative procedure.

205 Power to amend amounts

(1) The Secretary of State may by regulations amend any of the following provisions for the purpose of substituting a different monetary amount for an amount of fixed or daily penalty for the time being specified—

(a) section 158(5);

(b) section 168(3)(a) and (b);

(c) section 182(6);

(d) section 190(3)(a) and (b);

(e) section 193(3)(a) and (b);

(f) section 198(4).

(2) Before making regulations under this section the Secretary of State must consult such persons as the Secretary of State considers appropriate.

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

206 Recovery of monetary penalties

(1) This section applies where a monetary penalty imposed under Chapter 4, or any part of such a penalty, has not been paid by the date on which it is required to be paid and—

(a) an appeal to a court against the imposition of the penalty has not been brought before the end of the period within which it is required to be brought, or

(b) any such appeal that was brought has been determined, withdrawn or otherwise disposed of.

(2) The CMA may recover from the person on whom the penalty was imposed any of the penalty and any interest which has not been paid.

(3) Any such penalty and interest may be recovered summarily (or, in Scotland, recovered) as a civil debt by the CMA.

(4) Subsection (5) applies where—

(a) a penalty is payable by a person by virtue of a final infringement notice,

(b) the notice also includes directions imposing a requirement on the person to take enhanced consumer measures, and

(c) the enhanced consumer measures that the person is required to take are or include redress measures (see section 221(2)).

(5) In deciding whether to recover the penalty from the person under subsection (2), the CMA must have regard to—

(a) whether any compensation required to be paid to consumers under the redress measures has been, or is likely to be, paid, and

(b) where any such payments have not yet been paid (in full or in part), the effect that recovery of the penalty from the person may have on the person’s ability to make those compensatory payments.

207 Monetary penalties: further provision

(1) If the whole or any portion of a monetary penalty imposed is not paid by the date by which it is required to be paid, the unpaid balance from time to time carries interest at the statutory rate.

(2) Where an application has been made under section 203(3) or (4), the penalty is not required to be paid until the application has been determined, withdrawn or otherwise disposed of.

(3) Where an application has been made to appeal to a court in respect of a monetary penalty, the penalty is not required to be paid until the application has been determined, withdrawn or otherwise disposed of.

(4) If a portion of a monetary penalty imposed by an order of the court has not been paid by the date required for it, the court may, where it considers it appropriate to do so, by order require so much of the penalty as has not already been paid (and is capable of being paid immediately) to be paid immediately.

(5) If a portion of a monetary penalty imposed by virtue of a notice given by the CMA has not been paid by the date required for it, the CMA may, where it considers it appropriate to do so, by notice require so much of the penalty as has not already been paid (and is capable of being paid immediately) to be paid immediately.

(6) Where on an appeal under section 202 the court substitutes a penalty of a different nature or of a lesser amount, the court may require the payment of interest at the statutory rate on the substituted penalty from whatever date it considers appropriate (which may include a date before the determination of the appeal).

(7) In the case of a monetary penalty imposed on a firm that is not a body corporate, the penalty is to be paid out of the assets or funds of the firm.

(8) Sums received from a person towards payment of a monetary penalty must be paid—

(a) in the case of a penalty imposed by an order of the Court of Session or the Sheriff, into the Scottish Consolidated Fund;

(b) in the case of a penalty imposed by an order of a court in Northern Ireland, into the Consolidated Fund of Northern Ireland;

(c) in any other case, into the Consolidated Fund of the United Kingdom.

(9) In this section—

• “monetary penalty” means a monetary penalty imposed under Chapter 3 or 4;

• “the statutory rate” means the rate for the time being specified in section 17 of the Judgments Act 1838.

Chapter 6 Investigatory powers

208 Investigatory powers of enforcers

(1) Schedule 17 contains amendments to Schedule 5 to CRA 2015 (investigatory powers), including amendments about—

(a) the giving of monetary penalties in connection with a failure to comply with an information notice;

(b) the giving of information notices to persons outside the United Kingdom;

(c) the means by which information notices are to be given;

(d) entry to premises where documents are accessible from the premises.

(2) In subsection (1) “information notice” means a notice given under paragraph 14 of Schedule 5 to CRA 2015.

Chapter 7 Miscellaneous

209 Powers to amend Schedule 15 and Schedule 16

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

(a) the first column of the Table in Part 1 of Schedule 15 so as to add, remove or vary an entry for an enactment;

(b) the second column of that Table so as to add, remove or vary an entry providing for the authorised enforcers in respect of an enactment;

(c) the third column of that Table in consequence of amendments made under the power conferred by paragraph (a);

(d) the second column of the Table in Part 2 of Schedule 15 so as to add, remove or vary an entry providing for the authorised enforcers in respect of an obligation or rule of law;

(e) Schedule 16 so as to add, remove or vary an entry for an enactment.

(2) The power under subsection (1)(a) or (e) is exercisable so as to add or vary an entry in respect of an enactment only if, and to the extent that, one or more of the following is provided for under or by virtue of the enactment so added or varied—

(a) a duty, prohibition or restriction enforceable by criminal proceedings;

(b) a duty owed to a person that is enforceable by civil proceedings;

(c) a remedy or sanction enforceable by civil proceedings;

(d) an agreement or security relating to a supply of goods, services or digital content to be void or unenforceable to any extent;

(e) a right or remedy exercisable by a person supplying goods, services or digital content to be restricted or excluded;

(f) the avoidance (to any extent) of liability relating to the supply of goods, services or digital content to be restricted or prevented.

(3) It is immaterial for the purposes of subsection (2) whether or not—

(a) a duty, prohibition or restriction exists in relation to consumers as such;

(b) a remedy or sanction is provided for the benefit of consumers as such;

(c) proceedings have been brought in relation to the act or omission concerned;

(d) a person has been convicted of an offence in relation to the act or omission concerned.

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

210 Rules

(1) The CMA may make rules about procedural and other matters in connection with the carrying out of its direct enforcement functions.

(2) Rules may provide for any of the CMA’s direct enforcement functions to be carried out on its behalf—

(a) by one or more members of the CMA Board (see Part 2 of Schedule 4 to the Enterprise and Regulatory Reform Act 2013);

(b) by one or more members of the CMA Panel (see Part 3 of Schedule 4 to that Act);

(c) by one or more members of staff of the CMA;

(d) jointly by one or more of the persons mentioned in paragraphs (a) to (c).

(3) Rules may (among other things) include provision as to the following matters so far as relating to the carrying out of direct enforcement functions—

(a) the form and manner in which a notice given by the CMA under a direct enforcement function is to be given (subject to section 332);

(b) the person (or persons) to whom the notice is to be given;

(c) if the CMA is required to publish the notice, the manner in which it is to do so;

(d) arrangements to ensure the protection of confidential information;

(e) the disclosure of information to persons under investigation;

(f) the form and manner in which representations may or must be made to the CMA;

(g) the procedure to be followed in relation to the holding of oral hearings as part of an investigation;

(h) the procedure to be followed in cases where a person under investigation accepts that there has been a relevant infringement of a kind to which the investigation relates;

(i) arrangements for the making of, and dealing with, complaints.

(4) In this section and section 211 “rules” means rules made under this section.

211 Procedural requirements for making of rules

(1) In preparing rules the CMA must consult such persons as the CMA considers appropriate.

(2) The CMA may not bring a rule into operation until the rule has been approved by regulations made by the Secretary of State.

(3) The Secretary of State may approve a rule—

(a) in the form in which it is submitted, or

(b) subject to whatever modifications the Secretary of State considers appropriate.

(4) Where the Secretary of State proposes to approve a rule subject to modifications, the Secretary of State must—

(a) inform the CMA of the proposed modifications, and

(b) take into account any comments made by the CMA about the proposed modifications.

(5) The Secretary of State may by regulations—

(a) vary or revoke rules, or

(b) direct the CMA to vary or revoke rules in accordance with the direction.

(6) Subsections (2) to (4) apply to any variation of rules made by the CMA, except where acting under a direction given under subsection (5)(b).

(7) Regulations under this section are subject to the negative procedure.

212 Guidance

(1) The CMA must prepare and publish guidance about its general approach to the carrying out of its direct enforcement functions.

(2) Guidance under subsection (1) must provide information about the factors that the CMA will take into account in determining—

(a) whether it will exercise a power under Chapter 4 to accept, vary or release an undertaking;

(b) in cases where the exercise of any such power is exercisable only if the CMA considers a person has acted (or failed to act) without a reasonable excuse, whether a reasonable excuse exists;

(c) in a case where a monetary penalty has not been paid (or paid in full), whether to start proceedings for recovery of the penalty.

(3) Guidance under subsection (1) may include information about any other matters in connection with the carrying out of direct enforcement functions, including the factors that the CMA will take into account in determining whether to give a notice to a person in the carrying out of those functions.

(4) The CMA—

(a) must keep the guidance under review, and

(b) may from time to time revise or replace the guidance.

(5) Before issuing the first guidance under this section the CMA must consult—

(a) the Secretary of State, and

(b) such other persons as the CMA considers appropriate.

(6) The CMA must—

(a) before publishing the first guidance under this section, obtain the approval of the Secretary of State in respect of the proposed guidance;

(b) before revising or replacing any guidance published under this section, inform the Secretary of State of the proposed revision or replacement.

213 Defamation

For the purposes of the law relating to defamation, absolute privilege attaches to anything done by the CMA in exercise of its functions under this Part.

214 Minor and consequential amendments relating to this Part

Schedule 18 contains minor and consequential amendments relating to this Part.

215 Transitional and saving provision relating to this Part

Schedule 19 contains transitional and saving provision relating to this Part.

216 Enforcement of requirements relating to secondary ticketing

(1) CRA 2015 is amended as set out in subsections (2) to (4).

(2) In section 93 (enforcement of secondary ticketing provisions in Chapter 5 of Part 3)—

(a) after subsection (2) insert—

“(2A) The Competition and Markets Authority may also enforce the provisions of this Chapter.”;

(b) in subsection (3) for “and (2)” substitute “, (2) and (2A)”.

(3) In paragraph 11 of Schedule 5 (investigatory powers etc: enforcer’s legislation), in the table, at the appropriate place insert—

“The Competition and Markets Authority

The Breaching of Limits on Ticket Sales Regulations 2018 (S.I. 2018/735)”.

(4) In paragraph 6 of Schedule 10 (procedure for and appeals against financial penalties imposed under section 93: recovery)—

(a) in sub-paragraph (2) for “local weights and measures” substitute “enforcement”;

(b) in sub-paragraph (4) for “the Department of Enterprise, Trade and Investment” substitute “the enforcement authority which imposed the financial penalty”;

(c) in sub-paragraph (5)(a) after “Investment” insert “or by the Competition and Markets Authority”;

(d) after sub-paragraph (7) insert—

“(7A) The Competition and Markets Authority may use the proceeds of a financial penalty for the purposes of any of its functions (whether or not the function is expressed to be a function of the Authority).”

(5) In the Breaching of Limits on Ticket Sales Regulations 2018 (S.I. 2018/735), in regulation 5 (offences: prosecution and penalties), after paragraph (2) insert—

“(3) The Competition and Markets Authority may enforce these Regulations.”

Chapter 8 Interpretation of Part

217 Supply of goods or digital content

(1) This section provides for how references to the supply of goods or digital content are to be read for the purposes of this Part.

(2) References to a person who supplies goods or digital content are to be read as including references to a person who seeks to supply goods or digital content (and references to a person who receives goods or digital content are to be read in a corresponding way).

(3) The supply of goods includes, in relation to buildings and other structures, construction of them by one person for another.

(4) References to a person supplying goods under—

(a) a hire-purchase agreement,

(b) a credit-sale agreement, or

(c) a conditional sale agreement,

are to be read as including references to a person who conducts any antecedent negotiations relating to the agreement.

(5) The following terms have the meanings given by section 189(1) of the Consumer Credit Act 1974—

• “antecedent negotiations”;

• “conditional sale agreement”;

• “credit sale agreement”;

• “hire-purchase agreement”.

218 Supply of services

(1) This section provides for how references to the supply of services are to be read for the purposes of this Part.

(2) References to a person who supplies services are to be read as including references to a person who seeks to supply services (and references to a person who receives services are to be read in a corresponding way).

(3) The supply of services does not include the provision of services under a contract of service or of apprenticeship.

(4) It is immaterial whether the contract mentioned in subsection (3)—

(a) is express or implied, or

(b) if express, is oral or in writing.

(5) The supply of services includes—

(a) performing for gain or reward any activity other than the supply of goods or digital content;

(b) rendering services to order;

(c) the provision of services by making them available to potential users;

(d) making arrangements for sharing the use of electronic communications apparatus by means of a relevant agreement, within the meaning of paragraph 18 of Schedule 3A to the Communications Act 2003 (the electronic communications code);

(e) agreeing to the full or partial settlement of a consumer’s liabilities or purported liabilities in return for the consumer meeting a demand for payment.

219 Accessories

(1) This section applies for the purposes of this Part.

(2) A person (“A”) is an accessory to a commercial practice of another person (“B”) if—

(a) B is a body corporate,

(b) A has a special relationship with B,

(c) the commercial practice is one that B has engaged in or is engaging in, and

(d) the commercial practice takes place with the consent or connivance of A.

220 Special relationships

(1) This section applies for the purposes of this Part.

(2) A person has a special relationship with a body corporate if the person is—

(a) a controller of the body corporate, or

(b) a director, manager, secretary or other similar officer of the body corporate or a person purporting to act in such a capacity.

(3) A person is a controller of a body corporate if—

(a) the directors of the body corporate, or of another body corporate which is its controller, are accustomed to act in accordance with the person’s directions or instructions, or

(b) either alone or with one or more associates, the person is entitled to exercise or control the exercise of one third or more of the voting power at any general meeting of the body corporate or of another body corporate which is its controller.

(4) A person (“P”) is an associate of an individual if—

(a) P is the spouse or civil partner of the individual;

(b) P is a relative of the individual;

(c) P is a relative of the individual’s spouse or civil partner;

(d) P is the spouse or civil partner of a relative of the individual;

(e) P is a spouse or civil partner of a relative of the individual’s spouse or civil partner;

(f) P lives in the same household as the individual otherwise than merely because P, or the individual, is the other’s employer, tenant, lodger or boarder;

(g) P is the relative of a person who is an associate of the individual by virtue of paragraph (f);

(h) P has at some time in the past fallen within any of paragraphs (a) to (g);

(i) P is in partnership with the individual;

(j) the individual is an associate of an individual with whom P is in partnership.

(5) A person (“P”) is an associate of a body corporate if—

(a) P is a controller of the body corporate, or

(b) P is an associate of a person who is a controller of the body corporate.

(6) A body corporate is an associate of another body corporate if—

(a) the same person is a controller of both;

(b) a person (“P”) is a controller of one and persons who are P’s associates are controllers of the other;

(c) a person (“P”) is a controller of one and P and persons who are P’s associates are controllers of the other;

(d) a group of two or more persons is a controller of each company and the groups consist of the same persons;

(e) a group of two or more persons is a controller of each company and the groups may be regarded as consisting of the same persons by treating (in one or more cases) a member of either group as replaced by a person of whom that person is an associate.

(7) In this section “relative” means a brother, sister, uncle, aunt, nephew, niece, lineal ancestor or lineal descendant.

221 Enhanced consumer measures

(1) References in this Part to “enhanced consumer measures” are references to—

(a) redress measures (see subsection (2)),

(b) compliance measures (see subsection (3)), or

(c) choice measures (see subsection (4)).

(2) Redress measures are—

(a) measures offering compensation or other redress to affected consumers;

(b) in cases where the commercial practice constituting a relevant infringement relates to a contract, measures enabling affected consumers the option to terminate (but not vary) the contract;

(c) in cases where the affected consumers cannot be identified, or cannot be identified without disproportionate cost to the person giving the undertaking in question or against whom the order in question is made, measures intended to be in the collective interests of consumers.

(3) Compliance measures are measures intended to prevent, or reduce the risk of the occurrence or repetition of, the infringing conduct (which may include measures imposed for the purpose of improving compliance with consumer law more generally).

(4) Choice measures are measures intended to enable consumers to choose more effectively between persons supplying goods, services or digital content.

(5) In this section—

(a) references to affected consumers are references to consumers who have suffered loss as a result of the infringing conduct or who have otherwise been affected in any other way by the conduct;

(b) references to the “infringing conduct” are to the conduct that has given rise to the enforcement order or undertaking concerned.

222 Other interpretative provisions

In this Part—

• “business” includes—

  (a)

  a trade, craft or profession,

  (b)

  any other undertaking carried on for gain or reward, and

  (c)

  the activities of any government department or local or public authority;

• “enforcement order” means an order made under section 156;

• “enforcer” means a public designated enforcer or a private designated enforcer;

• “goods” includes—

  (a)

  immoveable property, and

  (b)

  rights and obligations;

• “interim enforcement order” means an order made under section 159;

• “interim online interface order” means an order made under section 162;

• “online interface order” means an order made under section 161;

• “subsidiary” has the meaning given by section 1159 of the Companies Act 2006;

• “supply” includes supply by means of sale, lease, hire or hire purchase.

223 Index of defined expressions

In this Part, the expressions listed in the left-hand column have the meaning given by, or are to be interpreted in accordance with, the provisions listed in the right-hand column.

Expression	Provision
Accessory	Section 219
Appropriate court	Section 173
Business	Section 222
Commercial practice	Section 148(2)
Consumer	Section 148(2)
Consumer protection order	Section 166(2)
Digital content	Section 330
Direct enforcement function	Section 197(5)
Enactment	Section 330
Enforcement direction	Section 191(6)
Enforcement order	Section 222
Enforcer	Section 222
Enhanced consumer measures	Section 221
Final breach of directions enforcement notice	Section 192(2)
Final breach of undertakings enforcement notice	Section 189(2)
Final false information enforcement notice	Section 198(2)
Final infringement notice	Section 182(2)
Goods	Section 222
Interim enforcement order	Section 222
Interim online interface order	Section 222
Online interface notice	Section 184(2)
Online interface order	Section 222
Private designated enforcer	Section 151(2)
Provisional breach of directions enforcement notice	Section 191(2)
Provisional breach of undertakings enforcement notice	Section 188(2)
Provisional false information enforcement notice	Section 197(2)
Provisional infringement notice	Section 181(3)
Public designated enforcer	Section 151(1)
Relevant infringement	Section 148
Special relationship	Section 220
Subsidiary	Section 222
Supply of goods	Section 217
Supply of services	Section 218
Trader	Section 148(2)
Turnover	Section 204
United Kingdom national	Section 330