Enterprise Act 2002

Chapter 3 U.K. Enforcement

Modifications etc. (not altering text)

C1 Pt. 4 modified by 2012 c. 7, s. 73(3)(b) (as substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 189(4)(c) (with art. 3))

C2 Pt. 4 modified by 2000 c. 38, s. 86(4A) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 154(6) (with art. 3))

C3 Pt. 4 modified (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 4 para. 57; S.I. 2014/416, art. 2(1)(c) (with Sch.)

C4 Pt. 4 modified by 2012 c. 19, s. 60(3A) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 197(5) (with art. 3))

C5 Pt. 4 certain functions made exercisable concurrently (1.4.2014) by Financial Services (Banking Reform) Act 2013 (c. 33), s. 59(1)-(5), 148(5); S.I. 2014/823, art.

C6 Pt. 4 modified by 1991 c. 56, s. 31(4) (as amended (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 84(5)(d) (with art. 3))

C7 Pt. 4 modified by 1989 c. 29, s. 43(2B) (as amended (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 65(4)(d) (with art. 3))

C8 Pt. 4 modified by 1986 c. 44, s. 36A (as amended (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 50(4)(d) (with art. 3))

C9 Pt. 4 modified by 1993 c. 43, s. 67(4)(d) (as amended (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 105(4)(d) (with art. 3))

F1 ... U.K.

Textual Amendments

F1 S.154A and cross-heading substituted for s.154 and cross-heading (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 8 para. 8; S.I. 2024/1226, regs. 1(2), 2(1)(12) (with Sch. para. 9, 20)

F1 154 Undertakings in lieu of market investigation references U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F1 Undertakings in lieu U.K.

154A Undertakings fully or partially in lieu of references or reports U.K.

(1) This section applies where—

(a) no market study notice has been published under section 130A but the CMA considers that it has the power to make a market investigation reference under section 131 and (subject to taking action under this section) intends to make such a reference,

(b) a market study notice has been published under section 130A but no market investigation reference has been made under section 131, or

(c) a market investigation reference has been made under section 131 or 132 but no report under section 136 has been published.

(2) The CMA may accept, from such persons as it considers appropriate, undertakings to take such action as it considers appropriate for the purposes of remedying, mitigating or preventing (to any extent)—

(a) any adverse effect on competition concerned, or

(b) any detrimental effect on customers so far as—

(i) it has resulted from the adverse effect on competition, or

(ii) it may be expected to result from the adverse effect on competition.

(3) An undertaking under this section is known as—

(a) an “undertaking in lieu of a reference” where it is accepted in circumstances where this section applies by virtue of subsection (1)(a) or (b);

(b) an “undertaking in lieu of a report” where it is accepted in circumstances where this section applies by virtue of subsection (1)(c).

(4) The CMA may accept—

(a) undertakings in lieu of a reference either—

(i) instead of making a reference under section 131 (in which case the undertakings are known as “undertakings fully in lieu of a reference”), or

(ii) in addition to making a reference under that section (in which case the undertakings are known as “undertakings partially in lieu of a reference”);

(b) undertakings in lieu of a report either—

(i) instead of publishing a report under section 136 (in which case the undertakings are known as “undertakings fully in lieu of a report”), or

(ii) in addition to publishing a report under that section (in which case the undertakings are known as “undertakings partially in lieu of a report”).

(5) In accepting undertakings fully in lieu of a reference or undertakings fully in lieu of a report, the CMA must, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to—

(a) the adverse effect on competition concerned, and

(b) any detrimental effects on customers so far as resulting from the adverse effect on competition.

(6) In accepting an undertaking under this section, the CMA may, in particular, have regard to the effect of any action on any relevant customer benefits of the feature or features of the market or markets concerned.

(7) Where no detrimental effect on customers has yet resulted from an adverse effect on competition, the CMA may not accept an undertaking under this section to remedy, mitigate or prevent a detrimental effect on customers so far as it may be expected to result from that adverse effect on competition unless the adverse effect on competition is also being remedied, mitigated or prevented (whether or not by the same undertaking).

(8) An undertaking under this section—

(a) comes into force when accepted;

(b) may be varied or superseded by another undertaking;

(c) may be released by the CMA.

(9) The CMA must, as soon as reasonably practicable, consider any representations received by it in relation to varying or releasing an undertaking under this section.

(10) This section is subject to sections 150 and 155.]

155 Undertakings in lieu: procedural requirements U.K.

(1) Before accepting an undertaking under section [F2 154A] (other than an undertaking under that section which varies an undertaking under that section but not in any material respect), the [F3 CMA] shall—

(a) publish notice of the proposed undertaking; and

(b) consider any representations made in accordance with the notice and not withdrawn.

(2) A notice under subsection (1) shall state—

(a) that the [F3 CMA] proposes to accept the undertaking;

(b) the purpose and effect of the undertaking;

(c) the situation that the undertaking is seeking to deal with;

(d) any other facts which the [F3 CMA] considers justify the acceptance of the undertaking;

(e) a means of gaining access to an accurate version of the proposed undertaking at all reasonable times; and

(f) the period (not less than 15 days starting with the date of publication of the notice) within which representations may be made in relation to the proposed undertaking.

[F4 (3A) The matters to be included in a notice under subsection (1) by virtue of subsection (2) include, in particular, the adverse effect on competition, and any detrimental effect on customers so far as resulting from the adverse effect on competition, which the CMA has identified.]

(4) The [F3 CMA] shall not accept the undertaking with modifications unless it—

(a) publishes notice of the proposed modifications; and

(b) considers any representations made in accordance with the notice and not withdrawn.

(5) A notice under subsection (4) shall state—

(a) the proposed modifications;

(b) the reasons for them; and

(c) the period (not less than 7 days starting with the date of the publication of the notice under subsection (4)) within which representations may be made in relation to the proposed modifications.

(6) If, after publishing notice under subsection (1) or (4), the [F5 CMA] decides—

(a) not to accept the undertaking concerned; and

(b) not to proceed by virtue of subsection (8) or (9);

it shall publish notice of that decision.

(7) As soon as practicable after accepting an undertaking to which this section applies, the [F5 CMA] shall—

(a) serve a copy of the undertaking on any person by whom it is given; and

(b) publish the undertaking.

(8) The requirements of subsection (4) (and those of subsection (1)) shall not apply if the [F5 CMA]—

(a) has already published notice under subsection (1) but not subsection (4) in relation to the proposed undertaking; and

(b) considers that the modifications which are now being proposed are not material in any respect.

(9) The requirements of subsection (4) (and those of subsection (1)) shall not apply if the [F5 CMA]—

(a) has already published notice under subsections (1) and (4) in relation to the matter concerned; and

(b) considers that the further modifications which are now being proposed do not differ in any material respect from the modifications in relation to which notice was last given under subsection (4).

(10) Paragraphs 6 to 8 (but not paragraph 9) of Schedule 10 (procedural requirements before terminating undertakings) shall apply in relation to the proposed release of undertakings under section [F6 154A] (other than in connection with accepting an undertaking under that section which varies or supersedes an undertaking under that section) as they apply in relation to the proposed release of undertakings under section 73.

Textual Amendments

F2 Word in s. 155(1) substituted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 8 para. 9(2); S.I. 2024/1226, regs. 1(2), 2(1)(12) (with Sch. para. 9, 20)

F3 Word in s. 155(1)-(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 188 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F4 S. 155(3A) substituted for s. 155(3) (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 8 para. 9(3); S.I. 2024/1226, regs. 1(2), 2(1)(12) (with Sch. para. 9, 20)

F5 Word in s. 155(6)-(9) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 188 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F6 Word in s. 155(10) substituted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 8 para. 9(4); S.I. 2024/1226, regs. 1(2), 2(1)(12) (with Sch. para. 9, 20)

156 Effect of undertakings [F7 in lieu] U.K.

[F8 (A1) No market investigation reference shall be made by the CMA or the appropriate Minister in relation to any feature, or combination of features, of a market in the United Kingdom for goods or services if—

(a) the CMA has accepted an undertaking or group of undertakings under section [F9 154A] within the previous 12 months;

(b) [F10 any] feature or combination of features to which the undertaking or group of undertakings relates is [F11 a] feature or combination of features to which the reference would relate; and

(c) the goods or services to which the undertaking or group of undertakings relates are of the same description as the goods or services to which the reference would relate.]

(1) No [F12 ordinary] reference shall be made by the [F13 CMA] or the appropriate Minister in relation to any feature, or combination of features, of a market in the United Kingdom for goods or services if—

(a) the [F13 CMA] has [F14 , instead of making an ordinary reference,] accepted an undertaking or group of undertakings [F15 in lieu of a reference under section 154A] within the previous 12 months; F16 ...

[F17 (ab) any feature or combination of features to which the undertaking or group of undertakings relates is a feature or combination of features to which the reference would relate; and]

(b) the goods or services to which the undertaking or group of undertakings relates are of the same description as the goods or services to which [F18 the reference would relate].

(2) [F19 Subsections (A1) and (1) do] not prevent the making of a market investigation reference if—

(a) the [F13 CMA] considers that any undertaking concerned has been breached and has given notice of that fact to the person responsible for giving the undertaking; or

(b) the person responsible for giving any undertaking concerned supplied, in connection with the matter, information to the [F13 CMA] which was false or misleading in a material respect.

[F20 (3) The expiry of the period mentioned in section 131B(4) does not prevent the making of a market investigation reference if the CMA has accepted an undertaking or group of undertakings under section [F21 154A] and—

(a) the CMA considers that any undertaking concerned has been breached and has given notice of that fact to the person responsible for giving the undertaking; or

(b) the person responsible for giving any undertaking concerned supplied, in connection with the matter, information to the OFT which was false or misleading in a material respect.]

[F22 (4) Where the CMA has, under section 154A, accepted an undertaking, or group of undertakings, in lieu of a report the CMA is not required by virtue of section 134 to make the decisions referred to in subsections (1) and (1A) of that section in relation to a feature, or features, to which the undertaking, or group of undertakings, relate.

(5) Accordingly, a report under section 136 is not required, and the duty under section 138 does not arise, if the CMA accepts an undertaking fully in lieu of a report.

(6) Instead, where the CMA accepts an undertaking fully in lieu of a report the CMA must prepare and publish a report containing—

(a) the CMA’s decision to accept the undertaking,

(b) the reasons for the decision, and

(c) such information as the CMA considers appropriate for facilitating a proper understanding of the decision and its reasons for the decision.

(7) For provision equivalent to subsection (6) in the case where the CMA accepts an undertaking partially in lieu of a report, see section 136(2)(aa).]

Textual Amendments

F7 Words in s. 156 heading substituted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 8 para. 10(2); S.I. 2024/1226, regs. 1(2), 2(1)(12) (with Sch. para. 9, 20)

F8 S. 156(A1) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 9 para. 8(2); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F9 Word in s. 156(A1)(a) substituted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 8 para. 10(3)(a); S.I. 2024/1226, regs. 1(2), 2(1)(12) (with Sch. para. 9, 20)

F10 Word in s. 156(A1)(b) substituted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 8 para. 10(3)(b)(i); S.I. 2024/1226, regs. 1(2), 2(1)(12) (with Sch. para. 9, 20)

F11 Word in s. 156(A1)(b) substituted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 8 para. 10(3)(b)(ii); S.I. 2024/1226, regs. 1(2), 2(1)(12) (with Sch. para. 9, 20)

F12 Word in s. 156(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 9 para. 8(3)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F13 Word in s. 156(1)(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 189 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F14 Words in s. 156(1)(a) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 9 para. 8(3)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F15 Words in s. 156(1) substituted (1.1.2025) by virtue of Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 8 para. 10(4)(a); S.I. 2024/1226, regs. 1(2), 2(1)(12) (with Sch. para. 9, 20)

F16 Word in s. 156(1)(a) omitted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 8 para. 10(4)(b); S.I. 2024/1226, regs. 1(2), 2(1)(12) (with Sch. para. 9, 20)

F17 S. 156(1)(ab) inserted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 8 para. 10(4)(c); S.I. 2024/1226, regs. 1(2), 2(1)(12) (with Sch. para. 9, 20)

F18 Words in s. 156(1)(b) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 9 para. 8(3)(c); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F19 Words in s. 156(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 9 para. 8(4); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F20 S. 156(3) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 12 para. 12; S.I. 2014/416, art. 2(1)(d) (with Sch.)

F21 Word in s. 156(3) substituted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 8 para. 10(5); S.I. 2024/1226, regs. 1(2), 2(1)(12) (with Sch. para. 9, 20)

F22 S. 156(4)-(7) inserted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 8 para. 10(6); S.I. 2024/1226, regs. 1(2), 2(1)(12) (with Sch. para. 9, 20)

[F23 Interim undertakings and orders] U.K.

Textual Amendments

F23 S. 157 cross-heading inserted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 8 para. 11; S.I. 2024/1226, regs. 1(2), 2(1)(12)

157 Interim undertakings: Part 4 U.K.

(1) Subsection (2) applies where—

(a) a market investigation reference has been made;

(b) a report has been published under section 136 within the period permitted by section 137 or (as the case may be) a report prepared under section 142 and given to the Secretary of State under section 143(3) [F24 or (as the case may be) 143A(3)] within the period permitted by section 144 has been published; and

(c) the market investigation reference concerned is not finally determined.

(2) The relevant authority may, for the purpose of preventing pre-emptive action, accept, from such persons as the relevant authority considers appropriate, undertakings to take such action as the relevant authority considers appropriate.

[F25 (2A) Subsection (2B) applies where—

(a) subsection (1)(a) to (c) applies; and

(b) the relevant authority has reasonable grounds for suspecting that pre-emptive action has or may have been taken.

(2B) The relevant authority may, for the purpose of restoring the position to what it would have been had the pre-emptive action not been taken or otherwise for the purpose of mitigating its effects, accept, from such persons as the relevant authority considers appropriate, undertakings to take such action as the relevant authority considers appropriate.]

[F26 (2C) A person may, with the consent of the relevant authority, take action of a particular description where the action would otherwise constitute a contravention of an undertaking accepted under this section.]

(3) An undertaking under this section—

(a) shall come into force when accepted;

(b) may be varied or superseded by another undertaking; and

(c) may be released by the relevant authority.

(4) An undertaking under this section shall, if it has not previously ceased to be in force, cease to be in force when the market investigation reference is finally determined.

(5) The relevant authority shall, as soon as reasonably practicable, consider any representations received by the relevant authority in relation to varying or releasing an undertaking under this section.

(6) In this section and section 158—

• “pre-emptive action” means action which might impede the taking of any action under section 138(2)[F27 , 147(2) or (as the case may be) 147A(2)] in relation to the market investigation reference concerned; and

• [F28 “the relevant authority” means—

  (a)

  in the case of a restricted PI reference or a full PI reference, the Secretary of State;

  (b)

  in any other case, the CMA.]

Textual Amendments

F24 Words in s. 157(1)(b) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 10 para. 24(2); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F25 S. 157(2A)(2B) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 37(2), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)

F26 S. 157(2C) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 37(3), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)

F27 Words in s. 157(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 10 para. 24(3)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F28 Words in s. 157(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 10 para. 24(3)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

158 Interim orders: Part 4 U.K.

(1) Subsection (2) applies where—

(a) a market investigation reference has been made;

(b) a report has been published under section 136 within the period permitted by section 137 or (as the case may be) a report prepared under section 142 and given to the Secretary of State under section 143(3) [F29 or (as the case may be) 143A(3)] within the period permitted by section 144 has been published; and

(c) the market investigation reference concerned is not finally determined.

(2) The relevant authority may by order, for the purpose of preventing pre-emptive action—

(a) prohibit or restrict the doing of things which the relevant authority considers would constitute pre-emptive action;

(b) impose on any person concerned obligations as to the carrying on of any activities or the safeguarding of any assets;

(c) provide for the carrying on of any activities or the safeguarding of any assets either by the appointment of a person to conduct or supervise the conduct of any activities (on such terms and with such powers as may be specified or described in the order) or in any other manner;

(d) do anything which may be done by virtue of paragraph 19 of Schedule 8.

[F30 (2A) Subsection (2B) applies where—

(a) subsection (1)(a) to (c) applies; and

(b) the relevant authority has reasonable grounds for suspecting that pre-emptive action has or may have been taken.

(2B) The relevant authority may by order, for the purpose of restoring the position to what it would have been had the pre-emptive action not been taken or otherwise for the purpose of mitigating its effects—

(a) do anything mentioned in subsection (2)(b) to (d);

(b) impose such other obligations, prohibitions or restrictions as it considers appropriate for that purpose.]

[F31 (2C) A person may, with the consent of the relevant authority, take action of a particular description where the action would otherwise constitute a contravention of an undertaking accepted under this section.]

(3) An order under this section—

(a) shall come into force at such time as is determined by or under the order; and

(b) may be varied or revoked by another order.

(4) An order under this section shall, if it has not previously ceased to be in force, cease to be in force when the market investigation reference is finally determined.

(5) The relevant authority shall, as soon as reasonably practicable, consider any representations received by the relevant authority in relation to varying or revoking an order under this section.

Textual Amendments

F29 Words in s. 158(1)(b) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 10 para. 25; S.I. 2014/416, art. 2(1)(d) (with Sch.)

F30 S. 158(2A)(2B) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 37(4), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)

F31 S. 158(2C) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 37(5), 103(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)

[F32 Final undertakings and orders] U.K.

Textual Amendments

F32 S. 159 cross-heading inserted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 8 para. 12; S.I. 2024/1226, regs. 1(2), 2(1)(12)

159 Final undertakings: Part 4 U.K.

(1) The [F33 CMA] may, in accordance with section 138, accept, from such persons as it considers appropriate, undertakings to take action specified or described in the undertakings.

(2) The Secretary of State may, in accordance with section 147 [F34 or (as the case may be) 147A], accept, from such persons as he considers appropriate, undertakings to take action specified or described in the undertakings.

(3) An undertaking under this section shall come into force when accepted.

(4) An undertaking under subsection (1) or (2) may be varied or superseded by another undertaking under that subsection.

(5) An undertaking under subsection (1) may be released by the [F35 CMA] and an undertaking under subsection (2) may be released by the Secretary of State.

(6) The [F36 CMA] or (as the case may be) the Secretary of State shall, as soon as reasonably practicable, consider any representations received by it or (as the case may be) him in relation to varying or releasing an undertaking under this section.

Textual Amendments

F33 Word in s. 159(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 190 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F34 Words in s. 159(2) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 10 para. 26; S.I. 2014/416, art. 2(1)(d) (with Sch.)

F35 Word in s. 159(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 190 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F36 Word in s. 159(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 190 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

160 Order-making power where final undertakings not fulfilled: Part 4 U.K.

(1) Subsection (2) applies where the relevant authority considers that—

(a) an undertaking accepted by the relevant authority under section 159 has not been, is not being or will not be fulfilled; or

(b) in relation to an undertaking accepted by the relevant authority under that section, information which was false or misleading in a material respect was given to [F37 a relevant person] by the person giving the undertaking before the relevant authority decided to accept the undertaking.

[F38 (1A) In subsection (1), a “relevant person” means—

(a) in a case where the relevant authority is the CMA, the CMA;

(b) in a case where the relevant authority is the Secretary of State, the Secretary of State or the CMA.]

(2) The relevant authority may, for any of the purposes mentioned in section 138(2)[F39 , 147(2) or (as the case may be) 147A(2)], make an order under this section.

(3) Subsections (3) to (6) of section 138 [F40 or 147 or (as the case may be) subsections (3) and (4) of section 147A] shall apply for the purposes of subsection (2) above as they apply for the purposes of that section.

(4) An order under this section may contain—

(a) anything permitted by Schedule 8; and

(b) such supplementary, consequential or incidental provision as the relevant authority considers appropriate.

(5) An order under this section—

(a) shall come into force at such time as is determined by or under the order;

(b) may contain provision which is different from the provision contained in the undertaking concerned; and

(c) may be varied or revoked by another order.

(6) [F41 The Secretary of State shall not vary or revoke an order made by him under this section unless the CMA] advises that such a variation or revocation is appropriate by reason of a change of circumstances.

(7) In this section “the relevant authority” means—

(a) in the case of an undertaking accepted under section 159 by the [F42 CMA], the [F42 CMA]; and

(b) in the case of an undertaking accepted under that section by the Secretary of State, the Secretary of State.

Textual Amendments

F37 Words in s. 160(1)(b) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 191(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F38 S. 160(1A) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 191(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F39 Words in s. 160(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 10 para. 27(2); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F40 Words in s. 160(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 10 para. 27(3); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F41 Words in s. 160(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 191(4) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F42 Word in s. 160(7)(a) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 191(5) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text)

C10 Ss. 75(4)(a), 83(4)(a), 84(2)(a), 89(1), 160(4)(a), 161(3)(a), 164(1), Sch. 7 paras. 5, 10, 11 modified (20.6.2003) by 1988 c. 48, s. 144(2) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 18(2)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C11 Ss. 75(4)(a), 83(4)(a), 84(2)(a), 89(1), 160(4)(a), 161(3)(a), 164(1), Sch. 7 paras. 5, 10, 11 modified (20.6.2003) by 1988 c. 48, s. 238(2) (as substituted by Enterprise Act 2002 (c. 40) ss. 278, 279, {Sch. 25 para. 18(4)}); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C12 Ss. 75(4)(a), 83(4)(a), 84(2)(a), 89(1), 160(4)(a), 161(3)(a), 164(1), Sch. 7 paras. 5, 10, 11 modified (20.6.2003) by 1988 c. 48, Sch. 2A para. 17(2) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 18(5)(a)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C13 Ss. 160(4)(a), 161(3)(a), 164(1) modified (20.6.2003) by 1993 c. 21, s. 33(2A) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 29(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C14 Ss. 160(4)(a), 161(3)(a), 164(1) modified (20.6.2003) by 1994 c. 17, s. 33(2A) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 31(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

161 Final orders: Part 4 U.K.

(1) The [F43 CMA] may, in accordance with section 138, make an order under this section.

(2) The Secretary of State may, in accordance with section 147 [F44 or (as the case may be) 147A], make an order under this section.

(3) An order under this section may contain—

(a) anything permitted by Schedule 8; and

(b) such supplementary, consequential or incidental provision as the person making it considers appropriate.

(4) An order under this section—

(a) shall come into force at such time as is determined by or under the order; and

(b) may be varied or revoked by another order.

(5) [F45 The Secretary of State shall not vary or revoke an order made by him under this section unless the CMA] advises [F46 , in accordance with section 162(3) or section 162A(8),] that such a variation or revocation is appropriate F47 ....

Textual Amendments

F43 Word in s. 161(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 192(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F44 Words in s. 161(2) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 10 para. 28; S.I. 2014/416, art. 2(1)(d) (with Sch.)

F45 Words in s. 161(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 192(3) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F46 Words in s. 161(5) inserted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), ss. 139(2)(a), 339(1); S.I. 2024/1226, regs. 1(2), 2(1)(2) (with Sch. para. 11, 20)

F47 Words in s. 161(5) omitted (1.1.2025) by virtue of Digital Markets, Competition and Consumers Act 2024 (c. 13), ss. 139(2)(b), 339(1); S.I. 2024/1226, regs. 1(2), 2(1)(2) (with Sch. para. 11, 20)

Modifications etc. (not altering text)

C15 Ss. 75(4)(a), 83(4)(a), 84(2)(a), 89(1), 160(4)(a), 161(3)(a), 164(1), Sch. 7 paras. 5, 10, 11 modified (20.6.2003) by 1988 c. 48, s. 144(2) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 18(2)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C16 Ss. 75(4)(a), 83(4)(a), 84(2)(a), 89(1), 160(4)(a), 161(3)(a), 164(1), Sch. 7 paras. 5, 10, 11 modified (20.6.2003) by 1988 c. 48, s. 238(2) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 18(4)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C17 Ss. 75(4)(a), 83(4)(a), 84(2)(a), 89(1), 160(4)(a), 161(3)(a), 164(1), Sch. 7 paras. 5, 10, 11 modified (20.6.2003) by 1988 c. 48, Sch. 2A para. 17(2) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 18(5)(a)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C18 Ss. 160(4)(a), 161(3)(a), 164(1) modified (20.6.2003) by 1993 c. 21, s. 33(2A) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 29(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C19 Ss. 160(4)(a), 161(3)(a), 164(1) modified (20.6.2003) by 1994 c. 17, s. 33(2A) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 31(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C20 S. 161(5) excluded (25.6.2013) by Groceries Code Adjudicator Act 2013 (c. 19), ss. 21(5), 25; S.I. 2013/1236, art. 2

[F48 161A Acceptance of enforcement undertakings: Part 4 U.K.

(1) The relevant authority may not accept an enforcement undertaking from a person unless it has provided the person with information about the possible consequences of failing to comply with the undertaking.

(2) In subsection (1), “the relevant authority” means—

(a) in the case of a restricted PI reference or a full PI reference, the Secretary of State;

(b) in any other case, the CMA.]

Textual Amendments

F48 S. 161A inserted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 11 para. 16; S.I. 2024/1226, regs. 1(2), 2(1)(15)

[F49 Implementation trials of final orders and undertakings U.K.

Textual Amendments

F49 Ss. 161B-161E and cross-heading inserted (24.5.2024 for specified purposes, 1.1.2025 in so far as not already in force) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(2)(c), Sch. 9 para. 4; S.I. 2024/1226, regs. 1(2), 2(1)(13) (with Sch. para. 10, 20)

161B Implementation trials: purpose and interpretation U.K.

(1) This section and sections 161C to 161E make provision in relation to the acceptance of undertakings and making of orders by a relevant authority on a trial basis for the purpose of assessing the effectiveness of qualifying remedial action (and the acceptance of undertakings and making of orders on that basis is referred to in this Part as an “implementation trial”).

(2) In this section and in sections 161C to 161E “relevant authority” means the CMA or the Secretary of State.

(3) In this Part—

• “implementation trial measure” means an undertaking accepted, or order made, under section 161C (and references to the imposition of such a measure are to be read as the acceptance of an undertaking or the making of an order, as the case may be);

• “implementation trial period” means, in relation to an implementation trial measure, the period—

  (a)

  beginning with the day on which the relevant authority begins the implementation trial, and

  (b)

  ending with the last day on which the implementation trial measure is to have effect (see subsections (4) and (5));

• “qualifying remedial action” means remedial action in respect of—

  (a)

  a matter concerning the provision or publication of information to consumers (whether directly or through an intermediary), or

  (b)

  any other matter specified in regulations made by the Secretary of State;

• “relevant adverse effect” means—

  (a)

  where the relevant authority is the CMA, an adverse effect on competition identified in the report mentioned in section 138(1);

  (b)

  where the relevant authority is the Secretary of State—

  (i)

  an adverse effect on competition identified in the report mentioned in section 146(1);

  (ii)

  an effect adverse to the public interest identified in the report mentioned in section 146A(1);

• “remedial action” means an action—

  (a)

  where the relevant authority is the CMA, to be taken in accordance with section 138(2) or section 162A(5);

  (b)

  where the relevant authority is the Secretary of State, to be taken in accordance with section 147(2) or 147A(2) (as the case may be).

(4) The last day on which an implementation trial measure is to have effect is the earlier of—

(a) the day specified under section 161D(5)(b)(ii), and

(b) the day on which action is taken under section 138(2), 147(2) or 147A(2) (as the case may be) in relation to the relevant adverse effect which the relevant authority considers concerns the same qualifying matter.

(5) But where—

(a) an implementation trial measure is imposed in accordance with this section, and

(b) the CMA extends, under section 138A(3), the period within which its duty under section 138(2) is required to be discharged in accordance with section 138A(A3) in relation to the measure,

the last day on which the implementation trial measure is to have effect is the last day of that period as so extended.

161C Power to conduct implementation trials U.K.

(1) The CMA may, in relation to a market investigation reference, begin an implementation trial where—

(a) subsection (2) of section 138 applies (see subsection (1) of that section), and

(b) the CMA has not taken, but is minded to take, qualifying remedial action.

(2) The Secretary of State may, in relation to a restricted PI reference or a full PI reference, begin an implementation trial where—

(a) subsection (2) of section 147, or subsection (2) of 147A (as the case may be), applies (see subsection (1) of the section in question), and

(b) the Secretary of State has not taken, but is minded to take, qualifying remedial action.

(3) Subsections (1) and (2) are subject to the duty to publish notices in section 161D.

(4) The relevant authority begins an implementation trial by—

(a) accepting, from such persons as the relevant authority considers appropriate, undertakings under this section to take action specified or described in the undertakings, or

(b) making an order under this section,

for the purposes of assessing, during the implementation trial period, the likely effectiveness of the qualifying remedial action.

(5) Where the relevant authority begins an implementation trial, the relevant authority may also—

(a) accept, from such persons as the relevant authority considers appropriate, undertakings under this section to take action specified or described in the undertakings, or

(b) make an order under this section,

in the circumstances mentioned in subsection (6).

(6) The circumstances are that the relevant authority considers that accepting the undertakings or making the order would be likely to contribute to, or otherwise be of use for purposes of, remedying, mitigating or preventing, during the implementation trial period—

(a) an adverse effect on competition identified in the report concerned or (as the case may be) an effect adverse to the public interest which has resulted from, or may be expected to result from, the features or combinations of features mentioned;

(b) any detrimental effect on customers so far as it has resulted from, or may be expected to result from, any such adverse effect on competition.

161D Implementation trials: notices U.K.

(1) Before the relevant authority begins an implementation trial under section 161C(4), the relevant authority must publish—

(a) a provisional implementation trial notice, and

(b) a final implementation trial notice (but see subsection (4)).

(2) A provisional implementation trial notice must—

(a) specify each implementation trial measure the relevant authority is minded to impose for the purposes of the implementation trial;

(b) specify the relevant adverse effect with which each measure is seeking to deal;

(c) specify any other facts which the relevant authority considers justify the imposition of each measure;

(d) specify, in relation to each measure—

(i) how the relevant authority intends to assess the likely effect of the measure, and

(ii) the last day on which the relevant authority intends for the measure to have effect;

(e) invite the making of representations by the persons on which the relevant authority is minded to impose one or more implementation trial measure (“implementation trial participants”) about the matters set out in the notice;

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

(3) The time specified under subsection (2)(f) by which representations must be made must be at least 15 days after the date on which the provisional implementation trial notice is published.

(4) A relevant authority may publish a final implementation trial notice only where—

(a) the relevant authority has published a provisional implementation trial notice under subsection (1),

(b) the time for the implementation trial participants to make representations to the relevant authority in accordance with the notice has expired, and

(c) after considering such representations (if any), it appears to the relevant authority that it is appropriate to begin an implementation trial under section 161C(4).

(5) A final implementation trial notice must specify—

(a) the implementation trial measures the relevant authority intends to impose for the purposes of the implementation trial,

(b) in relation to each such measure—

(i) how the relevant authority intends to assess the likely effect of the measure, and

(ii) the last day on which the measure is to have effect.

161E Implementation trials: supplementary U.K.

(1) The relevant authority may not accept an undertaking from a person under section 161C unless it has provided the person with information about the possible consequences of failing to comply with the undertaking.

(2) The CMA may not begin an implementation trial under section 161C(4)—

(a) in respect of qualifying remedial action that would be taken in accordance with subsection (2) of section 138, after the end of the period within which the CMA would otherwise have been required to discharge its duty under that subsection;

(b) in respect of qualifying remedial action that would be taken in accordance with section 162A(5), after the end of the period mentioned in section 162A(6).

(3) Subsections (3), (5) and (6) of section 138 apply to action taken by the CMA under section 161C as they apply to action taken by the CMA under section 138(2).

(4) Subsections (3)(b), (4), (5) and (6) of section 147 apply to action taken by the Secretary of State under section 161C in relation to a restricted PI reference as they apply to action taken by the Secretary of State under section 147(2).

(5) Subsections (3) and (4)(b) of section 147A apply to action taken by the Secretary of State under section 161C in relation to a full PI reference as they apply to action taken by the Secretary of State under section 147A(2).

(6) Subsections (3) to (5) of section 159 apply to undertakings accepted under section 161C as they apply to undertakings accepted under section 159(1).

(7) Subsections (3) and (4) of section 161 apply to orders made under section 161C as they apply to orders made under section 161(1).]

[F50 Undertakings and orders: monitoring, consultation and advice] U.K.

Textual Amendments

F50 S. 162 cross-heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 193 (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

162 Duty of [F51 CMA] to monitor [F52 the carrying out of] undertakings and orders: Part 4 U.K.

(1) The [F53 CMA] shall keep under review the carrying out of any enforcement undertaking or any enforcement order.

(2) The [F53 CMA] shall, in particular, from time to time consider—

(a) whether an enforcement undertaking or enforcement order has been or is being complied with;

(b) whether, by reason of any change of circumstances, an enforcement undertaking is no longer appropriate and—

(i) one or more of the parties to it can be released from it; or

(ii) it needs to be varied or to be superseded by a new enforcement undertaking; and

(c) whether, by reason of any change of circumstances, an enforcement order is no longer appropriate and needs to be varied or revoked.

(3) The [F54 CMA] shall give F55 ... the Secretary of State such advice as it considers appropriate in relation to—

(a) any possible variation or release by F56 ...the Secretary of State of an enforcement undertaking accepted by F57 ... him;

(b) any possible new enforcement undertaking to be accepted by F58 ... the Secretary of State so as to supersede another enforcement undertaking given to F58 ... the Secretary of State;

(c) any possible variation or revocation by F58 ... the Secretary of State of an enforcement order made by F58 ... the Secretary of State;

(d) any possible enforcement undertaking to be accepted by F58 ... the Secretary of State instead of an enforcement order or any possible enforcement order to be made by F58 ... the Secretary of State instead of an enforcement undertaking; or

(e) the enforcement by virtue of section [F59 167(6) and (7)] of any enforcement undertaking or enforcement order.

(4) The [F60 CMA ] shall take such action as it considers appropriate in relation to—

(a) any possible variation or release by it of an undertaking accepted by it under section [F61 154A];

(b) any possible new undertaking to be accepted by it under section [F62 154A] so as to supersede another undertaking given to it under that section;

[F63 (ba) any possible variation or release by it of an enforcement undertaking accepted by it;

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

(bc) any possible variation or revocation by it of an enforcement order made by it;

(bd) any possible enforcement undertaking to be accepted by it instead of an enforcement order or any possible enforcement order to be made by it instead of an enforcement undertaking;] or

(c) the enforcement by it by virtue of section 167(6) of any enforcement undertaking or enforcement order.

F64 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F64 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F64 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) In this Part—

• “enforcement order” means an order made under section 158, 160 or 161; and

• “enforcement undertaking” means an undertaking accepted under section [F65 154A], 157 or 159.

Textual Amendments

F51 Word in s. 162 heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 194(7) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F52 Words in s. 162 heading inserted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), ss. 139(3)(a), 339(1); S.I. 2024/1226, regs. 1(2), 2(1)(2) (with Sch. para. 11, 20)

F53 Word in s. 162(1)(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 194(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F54 Word in s. 162(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 194(3)(a)(i) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F55 Words in s. 162(3) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 194(3)(a)(ii) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F56 Words in s. 162(3)(a) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 194(3)(b)(i) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F57 Words in s. 162(3)(a) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 194(3)(b)(ii) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F58 Words in s. 162(3)(b)-(d) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 194(3)(c) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F59 Words in s. 162(3)(e) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 194(3)(d) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F60 Word in s. 162(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 194(4)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F61 Word in s. 162(4)(a) substituted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 8 para. 13(2); S.I. 2024/1226, regs. 1(2), 2(1)(12) (with Sch. para. 9, 20)

F62 Word in s. 162(4)(b) substituted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 8 para. 13(2); S.I. 2024/1226, regs. 1(2), 2(1)(12) (with Sch. para. 9, 20)

F63 S. 162(4)(ba)-(bd) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 194(4)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F64 S. 162(5)-(7) omitted (1.1.2025) by virtue of Digital Markets, Competition and Consumers Act 2024 (c. 13), ss. 139(3)(b), 339(1); S.I. 2024/1226, regs. 1(2), 2(1)(2) (with Sch. para. 11, 20)

F65 Word in s. 162(8) substituted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 8 para. 13(3); S.I. 2024/1226, regs. 1(2), 2(1)(12) (with Sch. para. 9, 20)

Modifications etc. (not altering text)

C21 Ss. 91(3), 92(1)(a), 162(1), 166(3) modified (20.6.2003) by 1977 c. 37, s. 50A(7) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 8(2)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C22 Ss. 162(1), 166(3) modified (20.6.2003) by S.I. 1982/1080 (N.I. 12), art. 23(6) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 12(2)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C23 Ss. 162(1), 166(3) modified (20.6.2003) by S.I. 1982/1080 (N.I. 12), art. 42(5A) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para 12(3)(e)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

[F66 162A Duty of CMA to monitor effectiveness of undertakings and orders: Part 4 U.K.

(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.]

Textual Amendments

F66 S. 162A inserted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), ss. 139(4), 339(1); S.I. 2024/1226, regs. 1(2), 2(1)(2) (with Sch. para. 11, 20)

[F67 162B Power to vary etc undertakings and orders: implementation trials U.K.

(1) This section applies in relation to implementation trial measures imposed in accordance with section 161C.

(2) The CMA must keep under review the effectiveness of the implementation trial measures.

(3) The CMA must, in particular, from time to time consider—

(a) whether an implementation trial measure has been or is being complied with;

(b) whether an undertaking accepted under section 161C is no longer appropriate and—

(i) one or more of the parties to it can be released from it; or

(ii) it needs to be varied or to be superseded by a new undertaking under that section; and

(c) whether an order made under section 161C is no longer appropriate and needs to be varied or revoked.

(4) The CMA must, within the implementation trial period, give the Secretary of State such advice as it considers appropriate in relation to—

(a) any possible variation or release by the Secretary of State of an undertaking accepted by the Secretary of State under section 161C;

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

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

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

(5) The relevant authority must, within the implementation trial period, take such action as it considers appropriate in relation to—

(a) any possible variation or release by the relevant authority of an undertaking accepted by it under section 161C;

(b) any possible new undertaking to be accepted by the relevant authority under that section so as to supersede another undertaking given to it under that section;

(c) any possible variation or revocation by the relevant authority of an order made by it under that section;

(d) any possible undertaking to be accepted by the relevant authority under that section instead of an order made under that section, or any possible order to be made by the relevant authority under that section instead of an undertaking accepted under that section.

(6) But the relevant authority may not do anything under this section that would result in—

(a) the implementation trial period being extended;

(b) an order or undertaking made under section 161C being out of compliance with any provision of that section.

(7) In this section “relevant authority” has the meaning given by section 161B(2).

(8) Subsections (3), (5) and (6) of section 138 apply to action taken by the CMA under this section as those subsections apply to action taken by the CMA under section 138(2).

(9) Subsections (3)(b), (5) and (6) of section 147 apply to action taken by the Secretary of State under this section in respect of a restricted PI reference as those subsections apply to action taken by the Secretary of State under section 147(2).

(10) Subsection (3) of section 147A applies to action taken by the Secretary of State under this section in respect of a full PI reference as that subsection applies to action taken by the Secretary of State under section 147A(2).]

Textual Amendments

F67 S. 162B inserted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 9 para. 5; S.I. 2024/1226, regs. 1(2), 2(1)(13) (with Sch. para. 10, 20)

163 [F68 Role of CMA in relation to undertakings and orders in public interest cases: Part 4] U.K.

(1) Subsections (2) and (3) apply where F69 ... the Secretary of State F70 ... is considering whether to accept undertakings under section 157 or 159.

(2) The [F71 Secretary of State] may require the [F72 CMA] to consult with such persons as the [F71 Secretary of State] considers appropriate with a view to discovering whether they will offer undertakings which the [F71 Secretary of State] would be prepared to accept under section 157 or (as the case may be) 159.

(3) The [F73 Secretary of State] may require the [F74 CMA] to report to the [F73 Secretary of State] on the outcome of the [F75 CMA's] consultations within such period as the [F73 Secretary of State] may require.

(4) A report under subsection (3) shall, in particular, contain advice from the [F76 CMA] as to whether any undertakings offered should be accepted by the [F77 Secretary of State ] under section 157 or (as the case may be) 159.

(5) The powers conferred on the [F78 Secretary of State] by subsections (1) to (4) are without prejudice to the power of the [F78 Secretary of State] to consult the persons concerned F79 ....

(6) If asked by the [F80 Secretary of State] for advice in relation to the taking of enforcement action (whether or not by way of undertakings) in a particular case, the [F81 CMA] shall give such advice as it considers appropriate.

Textual Amendments

F68 S. 163 heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 195(8) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F69 Words in s. 163(1) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 195(2)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F70 Words in s. 163(1) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 195(2)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F71 Words in s. 163(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 195(3)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F72 Word in s. 163(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 195(3)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F73 Words in s. 163(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 195(4)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F74 Word in s. 163(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 195(4)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F75 Word in s. 163(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 195(4)(c) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F76 Word in s. 163(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 195(5)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F77 Words in s. 163(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 195(5)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F78 Words in s. 163(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 195(6)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F79 Word in s. 163(5) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 195(6)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F80 Words in s. 163(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 195(7)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F81 Word in s. 163(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 195(7)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Supplementary U.K.

164 Enforcement undertakings and orders under this Part: general provisions U.K.

(1) The provision which may be contained in an enforcement undertaking is not limited to the provision which is permitted by Schedule 8.

(2) The following enactments in Part 3 shall apply in relation to enforcement orders under this Part as they apply in relation to enforcement orders under that Part—

(a) section 86(1) to (5) (enforcement orders: general provisions); and

(b) section 87 (power of directions conferred by enforcement order).

(3) An enforcement order under section 160 or 161 or any explanatory material accompanying the order shall state—

(a) the actions that the persons or description of persons to whom the order is addressed must do or (as the case may be) refrain from doing;

(b) the date on which the order comes into force;

(c) the possible consequences of not complying with the order; and

(d) the section of this Part under which a review can be sought in relation to the order.

Modifications etc. (not altering text)

C24 Ss. 75(4)(a), 83(4)(a), 84(2)(a), 89(1), 160(4)(a), 161(3)(a), 164(1), Sch. 7 paras. 5, 10, 11 modified (20.6.2003) by 1988 c. 48, s. 144(2) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 18(2)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C25 Ss. 75(4)(a), 83(4)(a), 84(2)(a), 89(1), 160(4)(a), 161(3)(a), 164(1), Sch. 7 paras. 5, 10, 11 modified (20.6.2003) by 1988 c. 48, s. 238(2) (as substituted by Enterprise Act 2002 (c. 40) ss. 278, 279, {Sch. 25 para. 18(4)}); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C26 Ss. 75(4)(a), 83(4)(a), 84(2)(a), 89(1), 160(4)(a), 161(3)(a), 164(1), Sch. 7 paras. 5, 10, 11 modified (20.6.2003) by 1988 c. 48, Sch. 2A para. 17(2) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 18(5)(a)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C27 Ss. 160(4)(a), 161(3)(a), 164(1) modified (20.6.2003) by 1993 c. 21, s. 33(2A) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 29(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C28 Ss. 160(4)(a), 161(3)(a), 164(1) modified (20.6.2003) by 1994 c. 17, s. 33(2A) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 31(3)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

165 Procedural requirements for certain undertakings and orders: Part 4 U.K.

Schedule 10 (procedural requirements for certain undertakings and orders), other than paragraph 9 of that Schedule, shall apply in relation to undertakings under section 159 [F82 or 161C] and orders under section 160 [F83 , 161 or 161C] as it applies in relation to undertakings under section 82 and orders under section 83 or 84.

Textual Amendments

F82 Words in s. 165 inserted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 9 para. 6(a); S.I. 2024/1226, regs. 1(2), 2(1)(13) (with Sch. para. 10, 20)

F83 Words in s. 165 substituted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 9 para. 6(b); S.I. 2024/1226, regs. 1(2), 2(1)(13) (with Sch. para. 10, 20)

166 Register of undertakings and orders: Part 4 U.K.

(1) The [F84 CMA] shall compile and maintain a register for the purposes of this Part.

(2) The register shall be kept in such form as the [F84 CMA] considers appropriate.

(3) The [F85 CMA] shall ensure that the following matters are entered in the register—

(a) the provisions of any enforcement undertaking accepted by virtue of this Part F86 ...;

(b) the provisions of any enforcement order made by virtue of this Part F87 ...; and

(c) the details of any variation, release or revocation of such an undertaking or order.

(4) The duty in subsection (3) does not extend to anything of which the [F88 CMA] is unaware.

(5) The F89 ... Secretary of State and any relevant sectoral regulator shall inform the [F90 CMA] of any matters which are to be included in the register by virtue of subsection (3) and which relate to enforcement undertakings accepted by them or enforcement orders made by them.

(6) The [F91 CMA] shall ensure that the contents of the register are available to the public—

(a) during (as a minimum) such hours as may be specified in an order made by the Secretary of State; and

(b) subject to such reasonable fees (if any) as the [F91 CMA] may determine.

(7) If requested by any person to do so and subject to such reasonable fees (if any) as the [F91 CMA] may determine, the [F91 CMA] shall supply the person concerned with a copy (certified to be true) of the register or of an extract from it.

Textual Amendments

F84 Word in s. 166(1)(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 196(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F85 Word in s. 166(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 196(3)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F86 Words in s. 166(3)(a) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 196(3)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F87 Words in s. 166(3)(b) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 196(3)(c) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F88 Word in s. 166(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 196(4) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F89 Words in s. 166(5) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 196(5)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F90 Word in s. 166(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 196(5)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F91 Word in s. 166(6)(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 196(6) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text)

C29 Ss. 91(3), 92(1)(a), 162(1), 166(3) modified (20.6.2003) by 1977 c. 37, s. 50A(7) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 8(2)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C30 Ss. 162(1), 166(3) modified (20.6.2003) by S.I. 1982/1080 (N.I. 12), art. 23(6) (as substituted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 12(2)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

C31 Ss. 162(1), 166(3) modified (20.6.2003) by S.I. 1982/1080 (N.I. 12), art. 42(5A) (as inserted by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para 12(3)(e)); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

167 Rights to enforce undertakings and orders under this Part U.K.

(1) This section applies to

[F92 (a)] any enforcement undertaking or enforcement order[F93 ;

(b) any undertaking accepted, or order made, under section 161C.]

(2) Any person to whom such an undertaking or order relates shall have a duty to comply with it.

(3) The duty shall be owed to any person who may be affected by a contravention of the undertaking or (as the case may be) order.

(4) Any breach of the duty which causes such a person to sustain loss or damage shall be actionable by him.

(5) In any proceedings brought under subsection (4) against a person to whom an [F94 undertaking or order to which this section applies] relates it shall be a defence for that person to show that he took all reasonable steps and exercised all due diligence to avoid contravening the undertaking or (as the case may be) order.

(6) Compliance with an [F95 undertaking or order to which this section applies] shall also be enforceable by civil proceedings brought by the [F96 CMA] for an injunction or for interdict or for any other appropriate relief or remedy.

(7) Compliance with an undertaking accepted [F97 by the Secretary of State] under section 157 or 159, or an order [F98 made by the Secretary of State] under section 158, 160 or 161, shall also be enforceable by civil proceedings brought by the [F99 Secretary of State] for an injunction or for interdict or for any other appropriate relief or remedy.

F100 (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9) Subsections [F101 (6) and (7)] shall not prejudice any right that a person may have by virtue of subsection (4) to bring civil proceedings for contravention or apprehended contravention of an [F102 undertaking or order to which this section applies].

[F103 (10) In deciding whether and, if so, how to proceed under this section, the CMA must have regard to the statement of policy which was most recently published by it under section 167C at the time of the failure to comply with the undertaking or (as the case may be) order.]

Textual Amendments

F92 Words in s. 167(1) renumbered as s. 167(1)(a) (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 9 para. 7(2)(a); S.I. 2024/1226, regs. 1(2), 2(1)(13) (with Sch. para. 10, 20)

F93 S. 167(1)(b) inserted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 9 para. 7(2)(b); S.I. 2024/1226, regs. 1(2), 2(1)(13) (with Sch. para. 10, 20)

F94 Words in s. 167(5) substituted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 9 para. 7(3); S.I. 2024/1226, regs. 1(2), 2(1)(13) (with Sch. para. 10, 20)

F95 Words in s. 167(6) substituted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 9 para. 7(4); S.I. 2024/1226, regs. 1(2), 2(1)(13) (with Sch. para. 10, 20)

F96 Word in s. 167(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 197(2) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F97 Words in s. 167(7) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 197(3)(a) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F98 Words in s. 167(7) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 197(3)(b) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F99 Words in s. 167(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 197(3)(c) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F100 S. 167(8) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 197(4) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F101 Words in s. 167(9) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 5 para. 197(5) (with s. 28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F102 Words in s. 167(9) substituted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 9 para. 7(5); S.I. 2024/1226, regs. 1(2), 2(1)(13) (with Sch. para. 10, 20)

F103 S. 167(10) inserted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 11 para. 17; S.I. 2024/1226, regs. 1(2), 2(1)(15) (with Sch. para. 16(4)-(6), 20)

[F104 167A Enforcement of undertakings and orders [F105 etc]: imposition of penalties U.K.

F106 (1) The relevant authority may, in accordance with section 167B, impose a penalty on a person—

(a) from whom the authority has accepted an enforcement undertaking, or

(b) to whom an enforcement order is addressed,

where the authority considers that the person has, without reasonable excuse, failed to comply with the undertaking or order.

(2) In this section and in section 167B, “the relevant authority” means—

(a) in the case of a restricted PI reference or a full PI reference, the Secretary of State;

(b) in any other case, the CMA.

(3) In deciding whether and, if so, how to proceed under subsection (1) the CMA must have regard to the statement of policy which was most recently published under section 167C at the time of the failure to comply.

Textual Amendments

F104 Ss. 167A-167C inserted (24.5.2024 for specified purposes, 1.1.2025 in so far as not already in force) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(2)(c), Sch. 11 para. 18; S.I. 2024/1226, regs. 1(2), 2(1)(15) (with Sch. para. 16(4)-(6), 20)

F105 Word in s. 167A heading inserted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 9 para. 8(2); S.I. 2024/1226, regs. 1(2), 2(1)(13) (with Sch. para. 10, 20)

F106 By Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 9 para. 8(3); S.I. 2024/1226, regs. 1(2), 2(1)(13) (with Sch. para. 10, 20) it is provided (1.1.2025) that the words “an enforcement undertaking or enforcement order” in s. 167A(1) become paragraph (a); and that after that “(b) any undertaking accepted, or order made, under section 161C.” is inserted

167B Penalties under section 167A: amount U.K.

(1) A penalty under section 167A(1) is to be such amount as the relevant authority considers appropriate.

(2) The amount 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) A penalty imposed under section 167A(1) on a person who does not own or control an enterprise must not—

(a) in the case of a fixed amount, exceed £30,000;

(b) in the case of an amount calculated by reference to a daily rate, exceed £15,000 per day;

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

(4) A penalty imposed under section 167A(1) on any other person must not—

(a) in the case of a fixed amount, exceed 5% of the total value of the turnover (both in and outside the United Kingdom) of the enterprises owned or controlled by the person on whom it is imposed;

(b) in the case of an amount calculated by reference to a daily rate, for each day exceed 5% of the total value of the daily turnover (both in and outside the United Kingdom) of the enterprises owned or controlled by the person on whom it is imposed;

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

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

(a) no account is to be taken of any days before the service on the person concerned of the provisional penalty notice under section 112(A1) (as applied by subsection (6)), and

(b) unless the CMA determines an earlier date (whether before or after the penalty is imposed), the amount payable ceases to accumulate at the beginning of the day on which the person complies with

[F107 (i)] the enforcement undertaking or enforcement order [F108 , or

(ii) the undertaking accepted, or order made, under section 161C.]

(6) Sections 112 to 115 apply in relation to a penalty imposed under section 167A(1) as they apply in relation to a penalty imposed under section 110(1) or (1A), with the following modifications—

(a) any reference in those provisions to the appropriate authority is to be read as a reference to the relevant authority within the meaning of this section (see section 167A(2));

(b) section 114(5A) is to be read as if the words “or OFCOM” were omitted;

(c) section 114(12) is to be read as if, for paragraph (b), there were substituted—

“(b) “relevant guidance” means the statement of policy which was most recently published under section 167C at the time when the act or omission concerned occurred.”

(7) The Secretary of State may by regulations amend subsection (3)(a) and (b) by substituting for either or both of the sums for the time being specified in those paragraphs such other sum or sums as the Secretary of State considers appropriate.

(8) Before making regulations under subsection (7) the Secretary of State must consult—

(a) the CMA, and

(b) such other persons as the Secretary of State considers appropriate.

(9) The Secretary of State may by regulations make provision for determining, for the purposes of this section—

(a) when an enterprise is to be treated as being controlled by a person;

(b) the turnover and daily turnover (both in and outside the United Kingdom) of an enterprise.

(10) Regulations under subsection (9)(b) may, in particular, make provision as to—

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

(b) the date, or dates, by reference to which an enterprise’s turnover, or daily turnover, is to be determined.

(11) Regulations under subsection (9) may, in particular, make provision enabling the relevant authority to determine matters of a description specified in the regulations (including any of the matters mentioned in paragraphs (a) and (b) of subsection (10)).

Textual Amendments

F104 Ss. 167A-167C inserted (24.5.2024 for specified purposes, 1.1.2025 in so far as not already in force) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(2)(c), Sch. 11 para. 18; S.I. 2024/1226, regs. 1(2), 2(1)(15) (with Sch. para. 16(4)-(6), 20)

F107 Words in s. 167B(5)(b) renumbered as s. 167B(5)(b)(i) (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 9 para. 9(2); S.I. 2024/1226, regs. 1(2), 2(1)(13) (with Sch. para. 10, 20)

F108 S. 167B(5)(b)(ii) and word inserted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 9 para. 9(3); S.I. 2024/1226, regs. 1(2), 2(1)(13) (with Sch. para. 10, 20)

167C Statement of policy in relation to functions under sections 167 and 167A U.K.

(1) The CMA must prepare and publish a statement of policy in relation to the exercise of functions under sections 167 and 167A.

(2) The CMA must, in particular, include a statement about the considerations relevant to the determination of the amount of any penalty imposed under section 167A.

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

(4) The CMA must consult the Secretary of State and such other persons as it considers appropriate when preparing or revising its statement of policy.

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

Textual Amendments

F104 Ss. 167A-167C inserted (24.5.2024 for specified purposes, 1.1.2025 in so far as not already in force) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(2)(c), Sch. 11 para. 18; S.I. 2024/1226, regs. 1(2), 2(1)(15) (with Sch. para. 16(4)-(6), 20)