Enterprise Act 2002

[F1Undertakings and orders: monitoring, consultation and advice]U.K.

Textual Amendments

162 Duty of [F2CMA] to monitor [F3the carrying out of] undertakings and orders: Part 4U.K.

(1)The [F4CMA] shall keep under review the carrying out of any enforcement undertaking or any enforcement order.

(2)The [F4CMA] 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(ii)it needs to be varied or to be superseded by a new enforcement undertaking; and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 [F5CMA] shall give F6... the Secretary of State such advice as it considers appropriate in relation to—

(a)any possible variation or release by F7...the Secretary of State of an enforcement undertaking accepted by F8... him;

(b)any possible new enforcement undertaking to be accepted by F9... the Secretary of State so as to supersede another enforcement undertaking given to F9... the Secretary of State;

(c)any possible variation or revocation by F9... the Secretary of State of an enforcement order made by F9... the Secretary of State;

(d)any possible enforcement undertaking to be accepted by F9... the Secretary of State instead of an enforcement order or any possible enforcement order to be made by F9... the Secretary of State instead of an enforcement undertaking; or

(e)the enforcement by virtue of section [F10167(6) and (7)] of any enforcement undertaking or enforcement order.

(4)The [F11CMA ] 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 [F12154A];

(b)any possible new undertaking to be accepted by it under section [F13154A] so as to supersede another undertaking given to it under that section;

[F14(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.

F15(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F15(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F15(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 [F16154A], 157 or 159.

Textual Amendments

F9Words 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.)

Modifications etc. (not altering text)

C1Ss. 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)

C2Ss. 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)

C3Ss. 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)

[F17162ADuty of CMA to monitor effectiveness of undertakings and orders: Part 4U.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

[F18162BPower to vary etc undertakings and orders: implementation trialsU.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

163 [F19Role of CMA in relation to undertakings and orders in public interest cases: Part 4]U.K.

(1)Subsections (2) and (3) apply where F20... the Secretary of State F21... is considering whether to accept undertakings under section 157 or 159.

(2)The [F22Secretary of State] may require the [F23CMA] to consult with such persons as the [F22Secretary of State] considers appropriate with a view to discovering whether they will offer undertakings which the [F22Secretary of State] would be prepared to accept under section 157 or (as the case may be) 159.

(3)The [F24Secretary of State] may require the [F25CMA] to report to the [F24Secretary of State] on the outcome of the [F26CMA's] consultations within such period as the [F24Secretary of State] may require.

(4)A report under subsection (3) shall, in particular, contain advice from the [F27CMA] as to whether any undertakings offered should be accepted by the [F28Secretary of State ] under section 157 or (as the case may be) 159.

(5)The powers conferred on the [F29Secretary of State] by subsections (1) to (4) are without prejudice to the power of the [F29Secretary of State] to consult the persons concerned F30....

(6)If asked by the [F31Secretary of State] for advice in relation to the taking of enforcement action (whether or not by way of undertakings) in a particular case, the [F32CMA] shall give such advice as it considers appropriate.

Textual Amendments