36 [F1Penalties].U.K.
(1)On making a decision that an agreement has infringed the Chapter I prohibition [F2or that it has infringed the prohibition in ] [F3Article 101(1)], the [F4CMA] may require an undertaking which is a party to the agreement to pay the [F4CMA] a penalty in respect of the infringement.
(2)On making a decision that conduct has infringed the Chapter II prohibition [F5or that it has infringed the prohibition in ] [F6Article 102], the [F4CMA] may require the undertaking concerned to pay the [F4CMA] a penalty in respect of the infringement.
(3)The [F4CMA] may impose a penalty on an undertaking under subsection (1) or (2) only if [F7the [F4CMA]] is satisfied that the infringement has been committed intentionally or negligently by the undertaking.
(4)Subsection (1) is subject to section 39 and does not apply [F8in relation to a decision that an agreement has infringed the Chapter I prohibition] if the [F4CMA] is satisfied that the undertaking acted on the reasonable assumption that that section gave it immunity in respect of the agreement.
(5)Subsection (2) is subject to section 40 and does not apply [F9in relation to a decision that conduct has infringed the Chapter II prohibition] if the [F4CMA] is satisfied that the undertaking acted on the reasonable assumption that that section gave it immunity in respect of the conduct.
(6)Notice of a penalty under this section must—
(a)be in writing; and
(b)specify the date before which the penalty is required to be paid.
(7)The date specified must not be earlier than the end of the period within which an appeal against the notice may be brought under section 46.
[F10(7A)In fixing a penalty under this section the CMA must have regard to—
(a)the seriousness of the infringement concerned, and
(b)the desirability of deterring both the undertaking on whom the penalty is imposed and others from—
(i)entering into agreements which infringe the Chapter 1 prohibition or the prohibition in Article 81(1), or
(ii)engaging in conduct which infringes the Chapter 2 prohibition or the prohibition in Article 82.]
(8)No penalty fixed by the [F11CMA] under this section may exceed 10% of the turnover of the undertaking (determined in accordance with such provisions as may be specified in an order made by the Secretary of State).
(9)Any sums received by the [F11CMA] under this section are to be paid into the Consolidated Fund.
Textual Amendments
F1Word in s. 36 sidenote substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 1 para. 22(6)
F2Words in s. 36(1) inserted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 1 para. 22(2)
F3Words in s. 36(1) substituted (1.8.2012) by The Treaty of Lisbon (Changes in Terminology or Numbering) Order 2012 (S.I. 2012/1809), art. 2(1), Sch. Pt. 1 (with art. 2(2))
F4Word in s. 36(1)-(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 20 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)
F5Words in s. 36(2) inserted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 1 para. 22(3)
F6Words in s. 36(2) substituted (1.8.2012) by The Treaty of Lisbon (Changes in Terminology or Numbering) Order 2012 (S.I. 2012/1809), art. 2(1), Sch. Pt. 1 (with art. 2(2))
F7Words in s. 36(3) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 38(28)(c); S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)
F8Words in s. 36(4) inserted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 1 para. 22(4)
F9Words in s. 36(5) inserted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 1 para. 22(5)
F10S. 36(7A) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 44(2), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)
F11Word in s. 36(8)(9) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 20 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)