Digital Markets, Competition and Consumers Act 2024

139 Duty of CMA to monitor undertakings and orders

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

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

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

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

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

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

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

(4) After that section insert—

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

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

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

(3) The CMA must—

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

(b) publish the report.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) in subsection (2)—

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

(ii) at the end insert “; and

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

(b) after subsection (10) insert—

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

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

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

(b) in subsection (1)—

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

(ii) after that paragraph insert “;

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

(c) in subsection (2)—

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

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