Search Legislation

Advanced Search

Digital Markets, Competition and Consumers Act 2024

Contents

Part 5: Miscellaneous

  1. Section 311 to Section 318 set out provisions that provide the CMA with information gathering powers enabling it to obtain specified information relevant to the retail of motor fuel. The provisions give the CMA power to request undertakings involved in the distribution, supply or retail of petrol and diesel for information to assess competition in the retail of motor fuel retail and impact on consumers.
  2. Sections 319 to 325 set out new provisions to facilitate the provision by relevant UK regulators of investigative assistance to overseas regulators who have functions corresponding to those of the UK regulators in relation to competition, consumer protection and digital markets.
  3. Section 326 amends Part 9 of the Enterprise Act 2002 (information) insofar as it relates to international information sharing. Section 326 repeals the existing overseas disclosure ‘gateway’ in section 243 of that Act and replaces it with new provisions governing the ability of the CMA and other UK public authorities to exchange information with overseas public authorities.
  4. Section 327 introduces a statutory duty of expedition in relation to the CMA’s competition and consumer law functions, as well as the CMA’s functions relating to the new digital market’s regime. Section 327 makes provisions regarding the application and extent of the duty of expedition.
  5. Section 328 amends section 71 of the Serious Organised Crime and Police Act 2005 to add the CMA to the list of prosecutors specified in that section. The amendments do not allow the CMA to give a notice providing immunity from prosecution under that section, but allow it to exercise the other powers available to specified prosecutors.
  6. Section 329 removes the prohibition on a person being a chair of the Competition Appeal Tribunal for more than 8 years.

Chapter 1: Competition in connection with motor fuel

Section 311: Provision of information about competition in connection with motor fuel

  1. This section gives the Competition and Markets Authority (CMA) power to request information from undertakings in, or connected with, the distribution, supply or retail of petrol and diesel. Such information should assist the CMA in assessing competition in the retail market for petrol and diesel and to provide updates and advice on proposals to increase competition and benefit consumers. This includes any information, such as estimates, forecasts, and returns. The use of "undertaking" means the CMA will not have the power to issue information notices to individuals, unless that individual is engaged in economic activity in relation to distribution, supply or retail of petrol and diesel, for example a sole trader that operates a filling station.
  2. Subsection (1) sets out that the CMA can request information from undertakings operating in the road fuel supply chain to support the operation of the function. This includes assessing competition in the retail of motor fuel and providing updates, recommendations, and advice on the state of competition in the sector to increase competition or benefit consumers.
  3. Subsection (3) sets out the content requirements for an information notice. The notice must set out the time and the frequency with which the information must be given to the CMA, as well as the form the information must take. For example, a notice might specify how the information should be transferred. The notice must also set out the consequences of not complying with the information request.
  4. Subsection (4) sets out the non-exhaustive requirements that the CMA can place upon businesses in an information request, including the provision of copies of or extracts from information, to obtain or generate information, collect, or retain information and to justify why information has not been given to the CMA.
  5. Subsection (8) outlines definitions and source of definitions for certain words used in this section. "Motor fuel" means petrol or diesel. These definitions set the parameters for the purposes of the function as outlined in subsection (1).
  6. Subsection (9) allows for the Secretary of State to amend the definition outlined in subsection (8) and is subject to the negative procedure. As the power relates to the detailed technical definitions, it was considered that the matter warrants a degree of scrutiny, but not necessarily prior Parliamentary debate and draft affirmative approval. In addition, the definition used in the amendment comes from the Motor Fuel (Composition and Content) Regulations 1999, which uses powers under section 30 of the Clean Air Act 1993. Regulations made under that section are subject to the negative procedure and therefore to ensure consistency with that the negative procedure is appropriate.

Section 312: Penalties for failure to comply with notices under section 311

  1. This section sets out that the CMA can impose financial penalties on undertakings that fail to comply with an information notice issued under section 311 of this Act without reasonable excuse. This includes:
    1. failing to comply with an information notice under section 311;
    2. destroying, falsifying or concealing any document that is required as part of an information notice under section 311;
    3. providing information which is false or misleading;
    4. providing information which is false or misleading to another undertaking knowing that the information was for the purpose of responding to an information notice under section 311 (subsection 1).
  2. Subsection (2) sets out a penalty imposed is to be of such amount as the CMA considers appropriate.
  3. Subsection (4) defines the maximum amounts of fixed and daily rate penalties that the CMA can impose under subsection (1). It sets out that the maximum fixed amount is an amount equal to 1% of the total value of the undertaking’s turnover (both inside and outside the UK) or a daily rate up to 5% of the total value of the undertaking’s daily turnover (both inside and outside the UK).
  4. Subsection (5) sets out how the CMA will calculate daily rates for the purpose of imposing a monetary penalty. Daily penalties are calculated from the date that the undertaking is served notice of the penalty by the CMA. Daily penalties will accumulate until the person complies with the requirement (e.g. the requested information is provided). The CMA has the discretion to determine an earlier date for the amount payable to cease accumulating.
  5. Subsection (6) to (8) allows for the Secretary of State, by way of regulations, to determine the turnover of an undertaking. The power is subject to the negative procedure.

Section 313: Procedures and appeals

  1. This section sets out which sections of the Enterprise Act 2002 apply for penalties imposed under section 311. Section 112 covers the main procedural requirements for giving notice of a penalty. Section 113 covers the procedural requirements for payment of a penalty and interest. Section 115 sets out the procedure for recovering a penalty which has not been paid.

Section 314: Statement of policy on penalties

  1. This section sets out that the CMA must publish and have regard to a statement of policy in deciding how to make use of the powers to impose penalties under section 311. It requires the CMA to consult the Secretary of State and then publish the statement of policy, which will include the considerations relevant to determining the nature and amount of any monetary penalty.

Section 315: Offences etc.

Destroying or falsifying information
  1. Subsection (1) sets out that it is a criminal offence to destroy, falsify or conceal information that has been requested by the CMA. The section mirrors section 43 of the Competition Act 1998. The offence can only be committed in relation to information that has been requested by the CMA.
False or misleading information
  1. Subsection (2) and (3) sets out that it is a criminal offence to provide information to the CMA which is false or misleading. It also sets out that a person commits an offence if a person knowingly, recklessly, or intentionally gives information to another person that is false or misleading. This section mirrors section 44 of the Competition Act 1998 and section 117 of the Enterprise Act 2002.
Sentences
  1. Subsection (4) sets out the punishments that can be imposed by the relevant courts on conviction of a criminal offence under subsections (1), (2) and (3).
  2. In England, Wales and Northern Ireland, a summary offence is triable in the Magistrates' Courts and an indictable offence, in the Crown Courts. In Scotland, a summary offence is triable in the Justice of the Peace Courts or the Sheriff Courts, and an indictable offence in the Sheriff Courts or High Court of Justiciary. In Scotland and Northern Ireland, there are statutory limits on fines that can be imposed by courts on conviction. In England and Wales, there is no such limit.
Offences by officers of a body corporate
  1. Subsections (5) to (8) provides for the circumstances in which individual officers of companies, partners of Scottish partnerships and members of limited liability partnerships may be held responsible for the conduct of their companies or partnerships in committing offences. Offences may be attributable to consent and connivance, or to neglect.

Section 316: Penalties under section 312 and offences under section 315

  1. This section provides that where a person has been found guilty of a criminal offence committed under section 315, they will not be required to pay a civil penalty for that same offence. Likewise, where a person has paid a civil penalty for an act of the kind referenced under section 311, they cannot be criminally convicted for that same offence. The section does not prevent criminal or civil proceedings from being started where, respectively, a penalty has been imposed but not paid or someone has been charged but not convicted.

Section 317: Information sharing

  1. This section provides that the restrictions on the disclosure of information contained in Part 9 of the Enterprise Act 2002 apply to the information that comes to the CMA in connection with the exercise of its functions under the Chapter of Part 5 of this Act to be formed by sections 311 to 318. This Chapter 1 of Part 5 of the Act is added to the list of Specified Functions set out in Schedule 14 to the Enterprise Act 2002. This places any information obtained by the CMA through the exercise of any statutory function under this Chapter in scope of the general restriction on disclosure set out at section 237 of the Enterprise Act 2002. It is a criminal offence under section 245 of the Enterprise Act 2002 to disclose or use information to which section 237 applies unless that disclosure or use is permitted by Part 9 of the Enterprise Act 2002.

Section 318: Expiry of this chapter

  1. This section provides that the Chapter in Part 5 formed by section 311 to section 318, expires five years after it comes into force, unless the Secretary of State makes regulations extending the period for which the Chapter has effect. This power to extend the period is subject to the affirmative procedure.

Chapter 2: Provision of investigative assistance to overseas regulators

Section 319: Provision of investigative assistance to overseas regulators

  1. This section acts as the gateway into the provisions allowing relevant UK regulators to provide investigative assistance to overseas regulators who have functions corresponding to those of the UK regulators in relation to competition, consumer protection and digital markets. Subsection (1) sets out the three core requirements for a relevant regulator in the United Kingdom ("R") to assist an overseas regulator ("O") and introduces a table in subsection (2) which provides more detail regarding the scope of the assistance and the manner in which it may be provided. A "relevant regulator" is one listed in the second column of the table (see definitions in subsection (5) which also defines "overseas regulator").
  2. Subsection (1), paragraph (a) provides that, at O’s request, R may assist O in carrying out functions which correspond or are similar to functions of R under a relevant enactment listed in the first column of the table in subsection (2). For example, with regards to competition law, the CMA may use its investigative powers in Part 1 of the Competition Act 1998 (competition) and Part 3 of the Enterprise Act 2002 (mergers) to assist O with equivalent functions overseas. The ability to assist with functions which "correspond" or "are similar" to R’s functions is intended to provide some flexibility in assessing the degree to which O and R’s functions are comparable. This is in recognition of the fact that while the precise legal nature of statutory provisions may vary between the UK and other jurisdictions, the intended purpose of the provisions and the conduct at which they are directed may be similar. Investigative assistance should be possible where this is the case.
  3. Subsection (1), paragraphs (b) and (c) specify two further conditions for the provision of assistance: that R must consider that it would be appropriate to assist O (further details in relation to this requirement are set out in section 321) and that except where the request for assistance is made in accordance with a qualifying cooperation arrangement, assistance must be authorised by the Secretary of State (see section 322). "Qualifying cooperation arrangement" is defined in subsection (5) and, for the purposes of this chapter, refers to any government-to-government arrangement or agreement which provides for mutual assistance between the UK and the country or territory of the overseas regulator, in relation to competition or consumer protection matters (including matters relating to digital markets).
  4. The table in subsection (2) specifies which regulators may provide assistance and identifies the statutory powers which may be exercised and how they can be used. The CMA is the regulator who may provide assistance where O’s functions correspond or are similar to the CMA’s functions under specified domestic competition and digital markets legislation. Those enforcers who have investigatory powers for consumer protection purposes under Schedule 5 to the Consumer Rights Act 2015 may use those powers in connection with infringements of overseas laws or other requirements which correspond or are similar to domestic consumer protection laws or requirements (as listed in Schedule 15 to the Act).
  5. Column 3 in the table in subsection (2) specifies how assistance may be provided. For example, the CMA may exercise its powers under the Competition Act 1998 as if it were carrying out an investigation under section 25 of that Act, and its powers under section 109 of the Enterprise Act 2002 as if providing investigative assistance were a "permitted purpose" for the purposes of that section. This helps ensure that other relevant provisions and safeguards under those Acts which apply where the CMA is using its powers for a domestic competition or merger investigation will apply where those powers are exercised to assist an overseas regulator. This would include, for example, section 30A of Competition Act 1998 (use of statements in prosecutions) which provides protection against self-incrimination in criminal proceedings. In addition, civil sanctions (including those being amended and added through this Act) and offences for non-compliance with investigatory measures available to R via these enactments in domestic investigations will also be available when investigative assistance is provided (see also the note on subsection (4) below).
  6. Subsection (3) modifies the application of Parts 3 and 4 of Schedule 5 to the Consumer Rights Act 2015 to allow those Parts to operate effectively in the context of the provision of investigative assistance under this section. Under paragraph (a), paragraphs 13, 19 and 20 of that Schedule, which set out which categories of enforcer may exercise various powers in Parts 3 and 4, are to be disregarded in the context of overseas assistance. Under paragraph (b), a power which is described elsewhere in Parts 3 and 4 as being exercisable by an enforcer of a particular category can only be exercised by R for the purposes of providing assistance if R is an enforcer of that category. Paragraph (c) concerns Part 4 of Schedule 5 to the Consumer Rights Act 2015. In Part 4 of that Schedule, references to the "enforcer’s legislation" with regards to an enforcer of the "domestic enforcer" category of enforcer under that Schedule should be interpreted as references to the laws or other requirements in the country or territory of O.
  7. Subsection (4) ensures that where there are references in enactments other than Chapter 2 of Part 5 of the Act to the functions of a relevant regulator under an enactment specified in the table in subsection (2), the references include those functions when they are exercised to assist an overseas regulator. This means, for example, that section 117 in Part 3 of the Enterprise Act 2002, which makes it an offence to supply false or misleading information to the CMA in connection with its "functions under this Part", will apply to information supplied to the CMA in connection with its functions in gathering information for an overseas regulator.

Section 320: Requests for investigative assistance.

  1. This section prescribes how O should make a request for assistance.
  2. Subsection (2) explains that a request must be made by O in writing, should describe the matter in respect of which assistance is being requested, and should include details of any penalty or sanction that could be imposed as a result of O exercising the functions in respect of which R’s assistance is being requested.

Section 321: The appropriateness of providing investigative assistance

  1. This section makes provision about how R is to consider whether it would be appropriate to assist O for the purposes of section 319, subsection (1), paragraph (b).
  2. Subsection (2) outlines three factors which R must have regard to in considering whether it would be appropriate to provide investigative assistance. Specifically:
    1. whether R would be able to exercise its powers under the relevant enactment concerned in a corresponding or similar domestic case,
    2. the existence of a regulator-to-regulator or government-to-government cooperation agreement covering competition or consumer protection matters, and
    3. whether the matter in respect of which the request was made is considered to be sufficiently serious to warrant R providing investigative assistance.
  3. For example, subsection (2), paragraph (a) should mean that while O will be able to seek assistance from R to gather missing information for the purpose of an investigation being carried out by O, it will not generally be appropriate for R to provide assistance in relation to, for example, a procedural case where O is taking action or imposing sanctions for non-compliance with its investigation if R’s powers are not available for such purpose domestically.
  4. Subsection (3) provides that R may consider that it should not provide investigative assistance if O was unable or unwilling to contribute towards the financial cost of providing that assistance.
  5. Subsection (4) provides that where any of subsections (5), (6), (7) or (8) apply, R must consider that it would not be appropriate to assist O (and should therefore reject an incoming request for investigative assistance).
  6. Subsection (5) applies where:
    1. R considers that O would not provide corresponding or substantially similar assistance in return. Reciprocity is an important factor in the provision of investigative assistance. However, even if R considers that reciprocal support would not be forthcoming, it may still consider providing assistance to O would be appropriate should there be an overriding UK public benefit in doing so.
    2. Providing assistance would be contrary to the UK public interest.
  7. Subsection (6) applies where assistance is requested concerning a criminal investigation or criminal proceedings and the request is not made under or in accordance with a qualifying cooperation arrangement.
  8. Subsection (7) applies where R would be unable to share the information gathered with O through any of the disclosure gateways in Part 9 of the Enterprise Act 2002 (including as amended under Chapter 2 of Part 5 of this Act). This is to ensure that early consideration is given to whether information gathered could be disclosed to O taking into account the safeguards under the disclosure gateways in Part 9 of the Enterprise Act 2002.
  9. Subsection (8) applies where a request relates to a matter where R would not, should the case arise domestically, have the power to use its investigatory powers unless there were reasonable grounds for suspecting a breach of the law; and R does not have reasonable grounds to suspect a breach of the law of the country of O which corresponds or is similar to the equivalent UK law. Subsection (9) provides that a certificate from O stating there has, or may have been, a breach of the overseas law is to be regarded as conclusive.

Section 322: Authorisation of the provision of investigative assistance

  1. The provision of investigative assistance by R is subject to authorisation by the Secretary of State unless it is provided under or in accordance with a qualifying cooperation arrangement - see section 319, subsection (1), paragraph (c). This section sets out how the Secretary of State authorises R to provide assistance to O.
  2. Subsection (2) provides that the Secretary of State can authorise individual requests or give a general authorisation for requests of a particular description by, for example, granting a general authorisation for a UK authority to carry out any request received from a specific overseas regulator in respect of a particular activity (such as gathering information relevant to a merger review) under the terms of a specific regulator-to-regulator international cooperation agreement. A general authorisation can be withdrawn at any time (subsection (3)). The Secretary of State must publish the giving and the withdrawal of any general authorisation (subsection (4)).
  3. Subsection (5) outlines the factors to which the Secretary of State must have regard when considering whether to approve the provision of investigative assistance. The Secretary of State must have regard to whether the request is made in accordance with any arrangements or agreements to which the UK is a party (whether legally binding or non-legally binding), whether it would be more appropriate for R to carry out an investigation (under one of the enactments listed in the table in section 319, subsection (2)) solely for its own purposes or that action should be taken in relation to the subject matter of the request by another UK body or by a body in a country or territory other than the requesting regulator’s country or territory; or whether any assistance which R provides would be contrary to the public interest.
  4. Subsection (6) details that the Secretary of State may approve R’s provision of assistance to O but impose conditions on the assistance which R provides. Examples of possible conditions are set out in subsection (7) and enable the Secretary of State to ensure that any assistance provided is appropriate.

Section 323: Notifications in respect of requests for investigative assistance

  1. This section states that R must notify the Secretary of State where it has received a request for assistance from O and is inclined to provide the requested assistance, and where the Secretary of State has not previously approved the assistance requested as part of a general authorisation (subsection (1), paragraph (b)). This requirement does not apply where the overseas regulator is making a request in accordance with a qualifying cooperation agreement (subsection 2). Subsection (3) requires R to notify O as to whether R will be providing the assistance requested and, whether there are any conditions imposed on that assistance by the Secretary of State.

Section 324: Guidance in connection with investigative assistance

  1. This section places a duty on the CMA to prepare and publish guidance in connection with the making and considering of requests for investigative assistance and the provision of such assistance. Guidance must be approved by the Secretary of State (subsection (3)) and consulted on (subsection (4)).
  2. Subsection (5) stipulates that regulators with powers to provide investigative assistance under this Chapter of Part 5 of the Act (i.e. consumer protection enforcers as well as the CMA) must have regard to the guidance published by the CMA under this section.

Section 325: Amendments to other legislation

  1. This section details that Schedule 28 makes a series of consequential amendments to other pieces of legislation to accommodate the provision of investigative assistance brought forward by this Act.

Schedule 28: Provision of investigative assistance to overseas regulators

  1. This Schedule makes a number of amendments to other legislation as follows:
    Amendments to Part 3 of the Enterprise Act 2002

    There are time limits which apply for the CMA to impose civil penalties for failures to comply with or obstruction in connection with merger information notices issued by the CMA under section 109 of the Enterprise Act 2002. Section 110A of that Act is amended to include a provision to specify the time limit in a case where the section 109 power is being used for purposes of providing investigative assistance.

    Section 111 is also amended to provide that where the CMA has imposed a daily default penalty in connection with an information notice which it has issued to assist O, such penalty will cease to accumulate on the day on which O no longer requires assistance.

    Section 120 of the Enterprise Act 2002 concerns the right for a person aggrieved by a decision to appeal to the Competition Appeal Tribunal. An amendment is made to extend this right to decisions of the CMA or the Secretary of State in connection with the CMA’s provision of investigative assistance to an overseas regulator.

    Amendments to Part 9 of the Enterprise Act 2002

    Chapter 2 of Part 5 of this Act replaces section 243 in Part 9 of the Enterprise Act 2002 with new sections 243A to 243F. New section 243E relates to the directions which the Secretary of State can make preventing disclosures to an overseas authority. An amendment is made to clarify that the Secretary of State may not make a direction as set out in section 243E where the disclosure relates to investigative assistance provided by virtue of Chapter 2of Part 5 of the Act (i.e. assistance which has been authorised by the Secretary of State or is provided under a qualifying cooperation arrangement).

    To ensure that information which comes to a public authority in connection with the exercise of its functions under Chapter 2 of Part 5 of the Act (investigative assistance) is categorised as "specified information" to which section 237 in Part 9 of the Enterprise Act 2002 applies, an amendment is made to add a reference to Chapter 2 of Part 5 of this Act into Schedule 14 to the Enterprise Act 2002.

    An amendment is also made to add a reference to Chapter 2 of Part 5 of this Act to Schedule 15 to the Enterprise Act 2002 to ensure that information which comes to a public authority in connection with the exercise of competition and consumer enforcement functions can be disclosed (under the gateway in section 241 of the Enterprise Act 2002) to another public authority for the purposes of enabling that authority to carry out its functions under Chapter 2 of Part 5 of the Act.

    Amendments to the Competition Act 1998

    Section 25A of the Competition Act 1998 deals with the CMA’s power to publish notice of investigation. This section is amended to permit the CMA to publish a Section 25A notice in connection with the use of its investigatory powers under Part 1 of the Competition Act 1998 to assist O.

    Section 25B (duty to preserve documents relevant to investigations) is also amended to ensure that the duty to preserve should apply to investigative assistance being carried out by the CMA.

    Section 40A is amended to provide that the daily penalty for failure to comply with a requirement imposed by the CMA in connection with the provision of investigative assistance to O will cease to run where O no longer requires assistance.

Chapter 3: Miscellaneous

Section 326: Disclosing information overseas

  1. This section relates to the ability of the CMA and other UK public authorities to exchange specified information with overseas public authorities. It replaces the existing overseas disclosures gateway under section 243 in Part 9 of the Enterprise Act 2002 (which sets out the circumstances under which public authorities may share specified information with overseas public authorities) with three new gateways. These gateways allow for overseas disclosures in defined circumstances and are subject to safeguards necessary to protect specified information.
  2. Part 9 of the Enterprise Act 2002 sets out general restrictions and conditions for the disclosure of specified information held by public authorities. "Specified information" (as defined in section 238 of the Enterprise Act 2002) is information which comes to a public authority in connection with the exercise of any of the functions that it has under competition and consumer enforcement related Parts of the Enterprise Act 2002, under legislation listed in Schedule 14 of the Enterprise Act 2002 or under any secondary legislation specified by the Secretary of State in an order.
  3. Subsection (2) replaces the existing gateway in section 243 of the Enterprise Act 2002 with new sections 243A-243F.
243A - Overseas disclosures for both overseas and domestic purposes
  1. New section 243A provides a gateway for a UK public authority to disclose specified information to an overseas public authority for the purposes of facilitating both its own functions and those of the overseas public authority.
  2. Subsection (1) provides that a UK public authority may make an overseas disclosure where this is intended to support both:
    1. the delivery of any of its own statutory functions (subsection (1), paragraph (a)), including functions under any enactment in an Act of the Scottish Parliament, Northern Ireland legislation or any subordinate legislation (as specified in subsection (3)), and
    2. the delivery by the overseas public authority of any of its functions in connection with any criminal investigations or proceedings, or civil investigations or proceedings that relate to the enforcement of "relevant law" (subsection (1), paragraph (b)).
  3. Subsection (4) defines "any relevant law" to encompass a range of competition, consumer protection and other related matters. It includes disclosure for the purposes of overseas civil proceedings in connection with breaches of legislation, obligations or rules of law that are equivalent to those listed in Schedule 14 of the Act.
  4. Together subsection (1), paragraph (b) and subsection (4) are designed to ensure that specified information can be disclosed through this gateway where an overseas authority has criminal enforcement functions of any kind or civil enforcement functions aligned with those of UK authorities who enforce competition, digital competition or consumer law.
  5. Similar to the corresponding provision in the existing gateway under section 243 of Part 9 of the Enterprise Act 2002, subsection (2) of section 243A sets limits on disclosures. It prevents a UK public authority from disclosing to an overseas public authority:
    1. information which is held by a person who is a private designated enforcer for the purposes of Chapter 3 of Part 3 of the Act,
    2. certain commercially sensitive information including, for example, information in connection with market investigations under Part 4 of the Enterprise Act 2002,
    3. information which comes to the public authority in connection with an investigation under section 11 of the Competition Act 1980, and
    4. legacy information which is defined in subsection (5) and includes information in connection with undertakings and orders arising out of past monopoly and merger investigations under the Fair Trading Act 1973 and information held before 21st July 2021 in connection with merger investigations under Part 3 of the Enterprise Act 2002.
243B – Overseas disclosures for overseas purposes only
  1. Section 243B provides a gateway for a UK public authority to make a disclosure to an overseas public authority solely for the purpose of facilitating the enforcement functions of the overseas public authority (as those functions are defined in section 243A, subsection (1), paragraph (b)). The exceptions to disclosure set out in subsection (2) of section 243A apply in the same way to the section 243B gateway.
243C – Overseas disclosures for designated cooperation arrangement purposes
  1. Section 243C provides a gateway for overseas disclosures by a UK public authority for the purposes of facilitating the terms of a "designated cooperation arrangement". A UK authority may enter into an agreement or non-legally binding arrangements with an overseas counterpart setting out how they intend to cooperate in relation to, for example, information sharing or coordinating their activities in connection with investigations. Section 243C confers a power on the Secretary of State to designate such arrangements and sets out the factors that they must have regard to or must satisfy themselves of before doing so.
  2. Subsection (1) allows specified information to be shared with an overseas public authority for a purpose permitted by a designated cooperation arrangement. This information sharing gateway does not specify, for example, the precise purposes for which specified information may or may not be shared or dictate appropriate safeguards. This is because this detail will be provided for in individual cooperation agreements or arrangements with the process of designation by the Secretary of State providing assurance that information will only be shared where appropriate and subject to relevant safeguards.
  3. A designated cooperation arrangement is defined in subsection (2) as an arrangement or agreement, which meets all of Conditions A to D that are set out in subsections (3) to (6):
    1. Condition A is that the arrangement is between either the UK and another country or territory, or directly between the UK and the overseas authority,
    2. Condition B is that the arrangement relates to cooperation between either the UK and the overseas country or territory; or between the UK and the overseas authority in connection with the enforcement functions mentioned in section 243A(1)(b),
    3. Condition C is that the arrangement provides for reciprocal assistance to be given for those purposes, and
    4. Condition D is that the arrangement is designated by the Secretary of State by regulations (subject to the negative resolution procedure as set out in subsection (10)).
  4. Subsection (7) provides that before designating a cooperation arrangement, the Secretary of State must have regard to whether it contains provision restricting or preventing (a) the use of information disclosed under the arrangement for a purpose other than the one for which it was disclosed and (b) its further disclosure to another person for any reason.
  5. In addition, under subsection (8), the Secretary of State cannot designate an agreement or arrangement unless they are satisfied that there will be appropriate protection against self-incrimination in criminal proceedings and in relation to the storage and disclosure of confidential information (as defined in new section 246A of the Enterprise Act 2002 inserted by section 326, subsection (5)). Subsection (9) states that protection in relation to self-incrimination and the storage and disclosure of information will be adequate if it corresponds, or is substantially similar, to that provided for in any part of the United Kingdom.
243D - Use and further disclosure of information disclosed under sections 243A and 243B
  1. Section 243D sets out additional restrictions on the use and further disclosure by overseas public authorities of information disclosed through the gateways in sections 243A (disclosure of information for facilitating both overseas and domestic purposes) and section 243B (disclosure of information for overseas purposes only).
  2. Subsections (2) and (3) concern restrictions on the use and further disclosure of information disclosed under the section 243A gateway to facilitate the exercise by the disclosing UK authority of any of its statutory functions. Subsection (2) sets out that information disclosed for these purposes cannot be used by the overseas authority for any purpose other than the one for which it was originally disclosed unless the disclosing UK authority consents to use for another purpose and that purpose is also to facilitate its own functions. Subsection (3) provides similarly that information disclosed to facilitate the functions of a UK authority must not be further disclosed by the overseas authority unless the UK authority gives its consent, and the further disclosure also facilitates a function of the UK authority. Consent may be given either subsequently or at the point the information is originally disclosed.
  3. Subsections (5) and (6) of section 243D apply to information disclosed under either the section 243A or the section 243B gateway to facilitate the exercise of any of the overseas authority’s enforcement functions as set out in section 243A, subsection (1), paragraph (b). Subsection (5) prevents information disclosed for these purposes from being used by the overseas public authority for any purpose other than the one for which it was originally disclosed unless the disclosing UK authority consents to its use for another purpose and that other purpose is also to facilitate one of the overseas authority’s enforcement functions.
  4. Similarly, subsection (6) provides that information disclosed to facilitate an overseas authority’s enforcement functions must not be further disclosed by the overseas authority unless the UK authority gives its consent, and the further disclosure also facilitates an overseas enforcement function. Again, consent may be given either subsequently or at the point the information is originally disclosed.
  5. Subsection (7) specifies that where a UK authority is deciding whether to give consent under any of the relevant provisions of section 243D for an overseas authority to use or further disclose information, it must have regard to the considerations set out in section 243F in the same way that it would have to when making an initial disclosure under the relevant gateway.
  6. Subsection (8) makes it clear that the restrictions in section 243D do not prevent any use and further disclosure of information by an overseas public authority that is required under the law of the country or territory of the authority.
243E - Directions by the Secretary of State relating to overseas disclosures under sections 243A and 243B
  1. Section 243E provides the Secretary of State with a power to prevent disclosure of information to overseas public authorities via the new gateways in sections 243A and 243B. This replaces the existing power to make such a direction in section 243, subsection (4) of the Enterprise Act 2002.
  2. Subsection (1) provides that the Secretary of State may direct that information should not be disclosed overseas under section 243A or 243B if they think the proceedings or investigation for which the information has been requested would be more appropriately carried out by authorities in the UK or in another country. Subsection (3) requires the Secretary of State to take appropriate steps to bring any direction made under subsection (1) to the attention of persons likely to be affected by it.
243F - Relevant considerations relating to overseas disclosures under sections 243A and 243B
  1. To ensure that information shared via the new gateways in sections 243A and 243B is appropriately protected, section 243F sets out the factors to which a UK public authority must have regard before making a disclosure.
  2. Under subsection (2), when deciding whether to make a disclosure to an overseas public authority under section 243A for the purpose of facilitating both its functions and the functions of the overseas public authority, a UK public authority must have regard to the existence of appropriate protections against self-incrimination in criminal cases and in relation to the storage and disclosure of confidential information (as defined in new section 246A of the Enterprise Act 2002 inserted by section 326, subsection (5)).
  3. Under subsection (3), when a UK public authority is deciding whether to make a disclosure to an overseas authority under section 243B for the purpose of facilitating the functions of the overseas authority only, the UK public authority must have regard both to the considerations in subsection (2) and to the following additional considerations:
    1. whether the reason for the request is sufficiently serious to justify disclosure,
    2. whether the disclosure would further the aims or purposes of any convention or treaty between the United Kingdom and the overseas country relating to cooperation in connection with competition (including matters relating to digital markets (Part 1 of this Act)) or consumer protection,
    3. the existence of any mutual assistance arrangements with the requesting country covering the kind of information protected under Part 9, and
    4. whether a body or person in the overseas country would provide corresponding or substantially similar assistance to the UK public authority.
  4. Subsection (4) states that protection will be appropriate if it corresponds or is substantially similar to that provided in any part of the United Kingdom.
  5. Subsections (5) and (6) give the Secretary of State a delegated power to alter, add to or remove any of the considerations set out in subsections (2) and (3) by regulations made by statutory instrument. The exercise of this power is subject to the negative resolution procedure which is consistent with the existing arrangements under section 243 of the Enterprise Act 2002. This procedure is appropriate because the power is limited as the Secretary of State would not be able to use it in ways which reduced the protections provided by, for example, the data protection legislation or Article 8 of the European Convention on Human Rights, and the safeguards provided for in section 244 of the Enterprise Act 2002.
  6. Subsection (3) of section 326 makes consequential amendments to section 244 of the Enterprise Act 2002 to update subsection (2) and (3) in the light of the new definitions of "commercial information", "private information" and "sensitive information" included in new section 246A of the Enterprise Act 2002.
  7. Subsection (4) of section 326 makes a consequential amendment to section 245 of the Enterprise Act 2002 which deals with offences related to information sharing. The effect of this amendment (which replicates the existing position under section 243) is that a person will have committed an offence if they disclose information in contravention of a direction given by the Secretary of State under section 243E preventing overseas disclosure.
  8. Subsection (5) of section 326 replaces section 246 of Enterprise Act 2002 with new section 246A (interpretation) which includes a new definition of "overseas public authority" and definitions of "confidential information", "commercial information", "private information" and "sensitive information".
  9. Subsection (6) of section 326 makes a consequential amendment to section 59, subsection (6) of the Companies (Audit, Investigations and Community Enterprises) Act 2004.

Section 327: Duty of expedition on the CMA and sectoral regulators

  1. This section makes provision for a duty of expedition on the CMA (and the sector regulators where relevant (see Schedule 29)) in relation to specified competition, consumer and digital markets functions, expanding and replacing the duty which previously applied in relation to its functions in relation to mergers under Part 3 of the Enterprise Act 2002. It further makes amendments to sector specific legislation to impose an equivalent duty when sector regulators exercise competition functions.
  2. Subsection (1) inserts a new subsection (4) into section 25 of the Enterprise and Regulatory Reform Act 2013 so that, when making any decision, or otherwise taking action, for the purposes of any of its functions listed in Schedule 4A the CMA must have regard to the need for making a decision, or taking action, as soon as reasonably practicable. The obligation applies to all steps of any relevant investigatory, regulatory or enforcement process.
  3. Subsection (2) inserts Schedule 4A into the Enterprise and Regulatory Reform Act 2013 and sets out the competition, consumer and digital markets functions to which the duty of expedition applies. The functions listed are those where the CMA has casework functions.
  4. Subsection (3) repeals the former duty of expedition which applied in relation to the CMA’s merger functions under Part 3 of the Enterprise Act 2002, and the modifications made to the application of duty by the Water Mergers (Modification of Enactments) Regulations 2004 (S.I. 2004/3202) for the purposes of the water merger regime set out in the Water Industry Act 1991.
  5. Subsection (4) gives effect to Schedule 29 which amends the relevant sectoral legislation to apply an equivalent duty of expedition to sector regulators when exercising competition functions.

Schedule 29: Duty of expedition on sectoral regulators in respect of their competition functions

  1. This Schedule amends the relevant sectoral legislation to apply a duty of expedition to regulators when they exercise competition functions under Part 1 of the Competition Act 1998 or Part 4 of the Enterprise Act 2002. In relation to concurrent functions under Part 1 of the Competition Act 1998, the concurrent regulators exercise some functions which are not listed in Schedule 4A to the Enterprise and Regulatory Reform Act 2013. To ensure the regulators are in a consistent position with the CMA, the amendments made to the sectoral legislation ensure that the duty applies only to the extent that a function under Part 1 of the Competition Act 1998 is both exercisable concurrently by the sector regulator, and specified in the new Schedule 4A.
  2. Paragraphs (1) and (2) insert a duty of expedition into sections 61 and 63 of the Civil Aviation Act 2012 and section 86 of the Transport Act 2000, which applies when the Civil Aviation Authority exercises its concurrent competition functions under Part 4 of the Enterprise Act 2002 and Part 1 of the Competition Act 1998.
  3. Paragraph (3) inserts a duty of expedition into sections 234I and 234J of the Financial Services and Markets Act 2000 which apply when the Financial Conduct Authority (FCA) exercises concurrent functions under Part 4 of the Enterprise Act 2002 and Part 1 of the Competition Act 1998.
  4. Paragraphs (4), (5) and (6) insert a duty of expedition into Article 29 of the Water and Sewerage Services (Northern Ireland) Order 2006 and Article 23 of the Gas (Northern Ireland) Order 1996, and Article 46 of the Electricity (Northern Ireland) Order 1992 respectively. These apply when the Northern Ireland Authority for Utility Regulation exercises concurrent functions under Part 4 of the Enterprise Act 2002 and Part 1 of the Competition Act 1998.
  5. Paragraph (7) inserts a duty of expedition into sections 370 and 371 of the Communications Act 2003 which apply when the Office of Communications (OFCOM) exercises concurrent functions under Part 4 of the Enterprise Act 2002 and Part 1 of the Competition Act 1998.
  6. Paragraphs (8) and (9) insert a duty of expedition into section 36A of the Gas Act 1986 and section 43 of the Electricity Act 1989 which apply when the Office of Gas and Electricity Markets (Ofgem) exercise concurrent functions under Part 4 of the Enterprise Act 2002 and Part 1 of the Competition Act 1998.
  7. Paragraph (10) inserts a duty of expedition into section 67 of the Railways Act 1993 which applies when the Office of Rail and Road (ORR) exercises concurrent functions under Part 4 of the Enterprise Act 2002 and Part 1 of the Competition Act 1998.
  8. Paragraph (11) inserts a duty of expedition into sections 59 and 61 of the Financial Services (Banking Reform) Act 2013 which applies when the Payment Systems Regulator exercises concurrent functions under Part 4 of the Enterprise Act 2002 and Part 1 of the Competition Act 1998.
  9. Paragraph (12) inserts a duty of expedition into section 31 of the Water Industry Act 1991 which applies when the Water Services Regulation Authority (Ofwat) exercises concurrent functions under Part 4 of the Enterprise Act 2002 and Part 1 of the Competition Act 1998 that are concurrent with the CMA.

Section 328: Offenders assisting investigations and prosecutions: powers of the CMA

  1. This section amends section 71 of the Serious Organised Crime and Police Act 2005 to add the CMA to the list of prosecutors specified in that section.
  2. Subsection (2) amends section 71, subsection (4) to add the CMA to the list of specified prosecutors.
  3. Subsection (3) amends section 71, subsection (6A) so that the CMA is included in the list of prosecutors who are permitted to designate only one chief prosecutor at a time and one alternative prosecutor for when they are unavailable.
  4. Subsection (4) inserts a new section 71, subsection (8) which prohibits the CMA from giving a notice providing immunity from prosecution under section 71, but allows it to exercise the other powers available to specified prosecutors. This has the effect of allowing the CMA to make a formal agreement regarding the use of evidence against an assisting offender, in accordance with section 72 Serious Organised Crime and Police Act 2005. It further means that the provisions at sections 74 and sections 387 and 388 of the Sentencing Act 2020 (in respect of England and Wales) and sections 73 to 74 of the Serious Organised Crime and Police Act 2005 (in respect of Northern Ireland) in relation to reduction in sentence for assistance to prosecution, and review by the courts of sentence, will apply to any written agreements made between an assisting offender and the CMA.

Section 329: Removal of limits on the tenure of a chair of the Competition Appeal Tribunal

  1. This section amends paragraph 2 of Schedule 2 to of the Enterprise Act 2002 to remove the prohibition on a person being a chair of the Competition Appeal Tribunal for more than eight years.

Part 6: General

Section 330: Interpretation 

  1. This section abbreviations and terms that are used throughout the Act.
  2. In relation to the definition of "digital content", "data" would include software.

Section 331: Data protection

  1. This section makes provision to clarify the relationship between the duties and powers to process information set out in the Act, and the data protection legislation (as defined in section 330).

Section 332: Notices

  1. This section sets out the process for giving notices under Part 1 and 3 of the Act, and Chapter 1 of Part 5 of the Act to persons within and outside of the UK, including to business entities registered or operating outside the UK. 
  2. Subsection (2) sets out four means of service applicable to notices to be given to any person whether an individual or a legal entity (referred to here, in either case, as the "recipient"). 
  3. Subsections (6) and (7) expand on the meaning of a recipient’s proper address for the purposes of subsection (2), paragraphs (b) and (c), including, in relation to partnerships and any other type of firm, provision for service to the recipient’s principal office. 
  4. Subsection (8) expands on the meaning of a recipient’s email address for the purposes of subsection (2), paragraph (d).  
  5. Subsection (7), paragraph (d) and subsection (8), paragraph (b) respectively provide for when no other definition of the recipient’s proper address, or (as the case may be) the recipient’s email address, applies.
  6. Subsections (3) to (5) provide that service on each of the listed kinds of business entity can be effected by serving on an individual with the specified office or role in relation to the entity. The means of service provided for service on recipients in subsection (2) and related subsections equally apply for the purposes of service on the specified individual. 
  7. Subsection (9) provides an non-exhaustive meaning of ‘principal office’ for the purpose of subsection (7), paragraphs (a), (b) and (c) where the entity listed is outside of the United Kingdom.
  8. Subsections (10) and (11) are self-explanatory. 

Section 333: Consultation   

  1. Section 333 clarifies that any requirement under the Act to consult may be satisfied by a consultation which takes place before the Act was passed. 

Section 334: Financial provision  

  1. Section 334 recognises that as a matter of House of Commons procedure, a financial resolution needed to be agreed for the Bill from which the Act resulted.

Section 335: Minor and consequential amendments  

  1. This section introduces Schedule 30 which makes minor and consequential amendments to other legislation as a consequence of provisions made in Part 2, Part 3, Chapter 1 of Part 4 and Chapter 2 of Part 5, of the Act.  

Schedule 30: Minor and consequential amendments  

  1. Schedule 30 makes amendments to other legislation required as a result of provision made by the Act regarding competition, consumer enforcement, unfair trading and the provision of investigative assistance to overseas regulators.   
  2. Those amendments include:   
    1. amendments to disapply the provisions regarding the extra territorial reach of the information gathering power at section 109 of the Enterprise Act 2002, and the reforms to the civil sanctions regime which enforces it, where that power is applied for non-merger control purposes by other enactments; and  
    2. amendment of information sharing gateways in legislation which otherwise restricts disclosure of information relating to individuals and businesses, to enable disclosure for the purposes of Part 3, Chapter 1 of Part 4 and Chapter 2 of Part 5 of the Act.  

Section 336: Power to make further consequential provision

  1. This section confers a power on the appropriate authority to make provision that is consequential on this Act, or any provision made under it. The appropriate authority means the Secretary of State unless the regulations made contain amendments only in relation to tax, in which case it means the Treasury. The power conferred under this section includes the ability to amend, repeal or revoke provisions made by enactments (as defined in section 330 but only in relation to any enactment passed or made before the end of the Parliamentary Session in which this Act is passed. An enactment in this context includes an Act of the UK Parliament, primary legislation made by the devolved administrations and assimilated direct legislation.  
  2. This power is exercised by way of regulations. The use of this power to amend, repeal or revoke provisions made in primary legislation is subject to the affirmative Parliamentary procedure (subsection (3)), otherwise the negative procedure applies (subsection (4)).  

Section 337: Regulations  

  1. This section sets out various procedural aspects relevant to the making of regulations under the Act by statutory instrument (except for commencement regulations made under section 339).    
  2. Subsections (3) and (4) explain what is meant by references in the Act to the affirmative procedure and the negative procedure. References to "the affirmative procedure" are to the draft affirmative procedure, whereby regulations must be debated and affirmed by both Houses of Parliament before they can be made. Under the negative procedure, regulations must be laid after making, and can be annulled by resolution in either House.  
  3. Subsection (5) ensures that where the Treasury makes regulations using the power in section 336 to make amendments to tax legislation only, the regulations would be subject only to procedure in the House of Commons. This is in recognition of the financial privilege of the Commons.  

Section 338: Extent  

  1.   This section sets out the territorial extent of the Act. The Act extends to the whole of the UK. 

Section 339: Commencement  

  1. This section outlines the details of the commencement of the Act. Generally, commencement will be by way of regulations made by the Secretary of State.  
  2. The exceptions to this are section 130 and Schedule 7 (mergers involving newspaper enterprises and foreign powers), Part 6 of the Act (except section 335 and Schedule 30 (minor and consequential amendments)) and any powers to make regulations (and any provisions necessary to enable the making of regulations); these commenced on Royal Assent. In addition, the amendments to Part 3 of the Enterprise Act 2002 made by section 129 and Schedule 6 in connection with the investigation of mergers involving energy network enterprises commence two months after Royal Assent.
  3. There is power for the Secretary of State to commence different provision on different days, and to make transitional or saving provision in relation to commencement.   

Section 340: Short title  

  1. This section as the Digital Markets, Competition and Consumers Act 2024.  

Back to top