Digital Markets, Competition and Consumers Act 2024 (c. 13)

Part 3 U.K. Enforcement of consumer protection law

Prospective

Chapter 4 U.K. Direct enforcement powers of CMA

Directions U.K.

191 Provisional breach of directions enforcement notice U.K.

(1) This section applies where—

(a) an enforcement direction has been given to a person (“the respondent”), and

(b) the CMA has reasonable grounds to believe that the respondent has without reasonable excuse failed to comply with the direction (fully or to any respect).

(2) The CMA may give to the respondent a notice under this section (a “provisional breach of directions enforcement notice”).

(3) A provisional breach of directions enforcement notice must—

(a) set out the grounds on which it is given, including the respondent’s acts or omissions giving rise to the belief mentioned in subsection (1)(b);

(b) set out proposed directions for the purpose of securing that the respondent complies with the direction;

(c) invite the respondent to make representations to the CMA about the giving of the notice;

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

(4) The means specified under subsection (3)(d) for making representations must include arrangements for them to be made orally if the respondent chooses to make representations in that way.

(5) A provisional breach of directions enforcement notice must also state—

(a) that the CMA is considering imposing a monetary penalty;

(b) the proposed amount of the penalty (including whether the penalty would be a fixed amount, an amount calculated by reference to a daily rate or both a fixed amount and an amount calculated by reference to a daily rate);

(c) any further factors (in addition to those provided under subsection (3)(a)) which the CMA considers justify the imposition of the proposed penalty and its amount or amounts.

(6) In this Chapter “enforcement direction” means a direction given in—

(a) a final infringement notice,

(b) an online interface notice, or

(c) a final breach of undertakings enforcement notice.

Modifications etc. (not altering text)

C1 Ss. 191-196 applied (24.5.2024 for specified purposes) by 2015 c. 15, Sch. 5 para. 16C(11) (as inserted by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(2)(c), Sch. 17 para. 2(3) (with Sch. 19))

Commencement Information

I1 S. 191 not in force at Royal Assent, see s. 339(1)

192 Final breach of directions enforcement notice U.K.

(1) This section applies where—

(a) the CMA has given to the respondent a provisional breach of directions enforcement notice under section 191 in respect of a suspected failure to comply with an enforcement direction,

(b) the time for the respondent to make representations to the CMA in accordance with that notice has expired, and

(c) after considering such representations (if any), the CMA is satisfied that the respondent has, without reasonable excuse, failed to comply with the direction.

(2) The CMA may give to the respondent a notice under this section (a “final breach of directions enforcement notice”).

(3) A final breach of directions enforcement notice is a notice that imposes on the respondent a requirement to pay a monetary penalty.

(4) A final breach of directions enforcement notice must—

(a) set out the grounds on which it is given, including the respondent’s acts or omissions giving rise to the failure mentioned in subsection (1)(c);

(b) state any further factors (in addition to those provided under paragraph (a)) which the CMA considers justify the giving of the notice;

(c) specify the monetary penalty information (see section 203).

(5) A final breach of directions enforcement notice may—

(a) vary or revoke the enforcement direction mentioned in subsection (1);

(b) specify such other directions as the CMA considers appropriate for the purpose of securing that the respondent complies with the requirements in respect of which the enforcement direction was given.

(6) Where a final breach of directions enforcement notice includes provision under subsection (5) that varies an enforcement direction or specifies other directions, the notice must (in addition to the requirements under subsection (4)) also state that the respondent has a right to appeal against the notice and the main details of that right.

(7) The CMA may publish a final breach of directions enforcement notice in such manner, and to such extent, as the CMA considers appropriate.

Modifications etc. (not altering text)

C1 Ss. 191-196 applied (24.5.2024 for specified purposes) by 2015 c. 15, Sch. 5 para. 16C(11) (as inserted by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(2)(c), Sch. 17 para. 2(3) (with Sch. 19))

Commencement Information

I2 S. 192 not in force at Royal Assent, see s. 339(1)

193 Monetary penalties under section 192: amount U.K.

(1) This section applies in relation to a requirement imposed on the respondent to pay a monetary penalty under a final breach of directions enforcement notice.

(2) The amount of the penalty 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) The penalty imposed on a person must not exceed—

(a) in the case of a fixed amount, £150,000 or, if higher, 5% of the total value of the turnover (if any) of the respondent;

(b) in the case of an amount calculated by reference to a daily rate, for each day £15,000 or, if higher, 5% of the total value of the daily turnover (if any) of the respondent;

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

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

(a) no account is to be taken of any days before the date on which the provisional breach of directions enforcement notice was given to the respondent, and

(b) unless the CMA determines an earlier date, the amount payable ceases to accumulate on the day on which the relevant directions are fully complied with.

(5) In subsection (4)(b) the “relevant directions” are—

(a) the enforcement direction mentioned in section 192(1)(a) (if not revoked under section 192(5)(a));

(b) any further directions specified under section 192(5)(b).

Modifications etc. (not altering text)

C1 Ss. 191-196 applied (24.5.2024 for specified purposes) by 2015 c. 15, Sch. 5 para. 16C(11) (as inserted by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(2)(c), Sch. 17 para. 2(3) (with Sch. 19))

Commencement Information

I3 S. 193 not in force at Royal Assent, see s. 339(1)

194 Powers of court to enforce directions U.K.

(1) This section applies where the CMA considers that a person (“the respondent”) has failed to comply with—

(a) an enforcement direction, or

(b) a direction given in a final breach of directions enforcement notice under section 192(5)(b).

(2) The CMA may make an application to the appropriate court under this section.

(3) If on an application under subsection (2) the court finds that the respondent has failed to comply with the direction concerned, the court may make an order imposing such requirements on the respondent as the court considers appropriate for the purpose of remedying the failure.

(4) An order under this section may provide for all of the costs or expenses of, and incidental to, the application for the order to be met by the respondent or any officer of a person that is responsible for the respondent’s failure to comply with the direction.

(5) Nothing in this section limits the powers of the court to make orders under Chapter 3 or otherwise (and an application under this section may be combined with an application under that Chapter for a consumer protection order).

(6) The following provisions of Chapter 3 apply to an order under this section as if the order were a consumer protection order—

(a) section 173 (appropriate court);

(b) section 174 (effect of orders in other parts of the United Kingdom);

(c) section 178 (substantiation of claims).

Modifications etc. (not altering text)

C1 Ss. 191-196 applied (24.5.2024 for specified purposes) by 2015 c. 15, Sch. 5 para. 16C(11) (as inserted by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(2)(c), Sch. 17 para. 2(3) (with Sch. 19))

Commencement Information

I4 S. 194 not in force at Royal Assent, see s. 339(1)

195 Substantiation of claims U.K.

(1) This section applies where—

(a) the CMA gives a provisional notice under this Chapter to a person (“the respondent”) in respect of a relevant infringement involving a contravention of Chapter 1 of Part 4 (protection from unfair trading), and

(b) the respondent makes representations to the CMA in response to that notice.

(2) The CMA may, for the purpose of considering the representations, require the respondent to provide evidence as to the accuracy of any factual claim made as part of a commercial practice of the respondent.

(3) The CMA may determine that a factual claim of the respondent is inaccurate if—

(a) the respondent fails to provide evidence of the accuracy of the claim in response to a requirement imposed under subsection (2), or

(b) the CMA considers that any such evidence that is provided is inadequate.

(4) In this section “provisional notice” means—

(a) a provisional infringement notice,

(b) a provisional breach of undertakings enforcement notice, or

(c) a provisional breach of directions enforcement notice.

Modifications etc. (not altering text)

C1 Ss. 191-196 applied (24.5.2024 for specified purposes) by 2015 c. 15, Sch. 5 para. 16C(11) (as inserted by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(2)(c), Sch. 17 para. 2(3) (with Sch. 19))

Commencement Information

I5 S. 195 not in force at Royal Assent, see s. 339(1)

196 Variation or revocation of directions U.K.

(1) This section applies where the CMA proposes to—

(a) make a material variation of an enforcement direction given to a person (“the respondent”), or

(b) revoke any such direction.

(2) Before taking the proposed action mentioned in subsection (1) the CMA must—

(a) give notice to the respondent under subsection (3), and

(b) consider any representations made in accordance with the notice.

(3) A notice under this subsection must state—

(a) the fact that CMA is proposing to act as mentioned in subsection (1),

(b) the reasons for doing so, and

(c) the means by which, and the time by which, representations may be made in relation to the proposed variation or revocation.

(4) If after considering any representations made in accordance with a notice under subsection (3) the CMA decides to take the action mentioned in subsection (1), the CMA must give notice to the respondent of that decision.

(5) The reference in subsection (1)(a) to a material variation is a reference to any variation that the CMA considers to be material in any respect.

(6) In this section “enforcement direction” includes a direction given in a notice under section 192(5)(b).

Modifications etc. (not altering text)

C1 Ss. 191-196 applied (24.5.2024 for specified purposes) by 2015 c. 15, Sch. 5 para. 16C(11) (as inserted by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(2)(c), Sch. 17 para. 2(3) (with Sch. 19))

Commencement Information

I6 S. 196 not in force at Royal Assent, see s. 339(1)