Enterprise and Regulatory Reform Act 2013 (c. 24)

PART 4 U.K. Competition Reform

CHAPTER 1 U.K. Mergers

Interim measures U.K.

31 Interim measures: financial penalties: mergers U.K.

(1) After section 94 of the 2002 Act (rights to enforce undertakings and orders under Part 3) insert—

“94A Interim undertakings and orders under this Part: penalties

(1) Where the appropriate authority considers that a person has, without reasonable excuse, failed to comply with an interim measure, it may impose a penalty of such fixed amount as it considers appropriate.

(2) A penalty imposed under subsection (1) shall not 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.

(3) For the purposes of subsection (2), the Secretary of State may by order make provision for determining—

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

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

(4) An order under subsection (3)(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;

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

(5) An order under subsection (3) may, in particular, make provision enabling the appropriate authority to determine matters of a description specified in the order (including any of the matters mentioned in paragraphs (a) and (b) of subsection (4)).

(6) The Secretary of State may by order amend subsection (2) so as to alter the percentage for the time being mentioned there to any percentage not exceeding 5%.

(7) Sections 112 to 115 apply in relation to a penalty imposed under subsection (1) as they apply in relation to a penalty of a fixed amount imposed under section 110(1), with the modification that any reference in those provisions to the CMA is to be read as a reference to the person who imposed the penalty under this section.

(8) In this section—

• “interim measure” means—

  (a)

  an undertaking under section 80; or

  (b)

  an order under section 72 or 81 or paragraph 2 of Schedule 7;

• “appropriate authority” means—

  (a)

  in relation to an interim measure which is an order made by the Secretary of State under paragraph 2 of Schedule 7, the Secretary of State;

  (b)

  in relation to any other interim measure, the CMA.

94B Statement of policy in relation to powers under sections 94 and 94A

(1) The CMA shall prepare and publish a statement of policy in relation to the use of its powers under—

(a) section 94, insofar as they relate to interim measures; and

(b) section 94A.

(2) The CMA shall, in particular, include a statement about the considerations relevant to the determination of the amount of any penalty imposed under section 94A.

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

(4) The CMA shall 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 unless the Secretary of State approves the statement.

(6) In this section, “interim measure” has the same meaning as in section 94A.”

(2) In section 120 of that Act (review of decisions under Part 3), in subsection (2)(a), for “section 110(1) or (3)” substitute “ section 94A(1) or 110(1) or (3) ”.

(3) In section 124 of that Act (orders and regulations under Part 3)—

(a) in subsection (4), before “or 102” insert “ , 94A(6) ”, and

(b) in subsection (5), before “111(4) or (6),” insert “ 94A(3) or (6), ”.

Commencement Information

I1 S. 31 partly in force; s. 31 in force for specified purposes at Royal Assent, see s. 103(1)(i)