Digital Markets, Competition and Consumers Act 2024

Prospective

Chapter 4 U.K. Direct enforcement powers of CMA

Investigations U.K.

180 Power of CMA to investigate suspected infringements U.K.

(1) This section applies where the CMA has reasonable grounds for suspecting that—

(a) a person has engaged, is engaging or is likely to engage in a commercial practice that constitutes a relevant infringement, or

(b) a person is an accessory to such a practice.

(2) The CMA may conduct an investigation into the matter.

(3) Where the CMA conducts an investigation, it may publish a notice which (among other things) may—

(a) state its decision to conduct the investigation,

(b) summarise the matter under investigation (including the industry sectors affected),

(c) identify, so far as possible, the persons under investigation (including whether they are suspected of falling within subsection (1)(a) or (b)), and

(d) indicate the timetable for the conduct of the investigation.

(4) If after giving a notice under subsection (3) the CMA decides to close an investigation, the CMA must publish a notice confirming that the investigation is to be closed.

Commencement Information

I1 S. 180 not in force at Royal Assent, see s. 339(1)

Infringement notices and penalties U.K.

181 Provisional infringement notice U.K.

(1) This section applies where—

(a) the CMA has started an investigation under section 180 that is continuing, and

(b) the condition in subsection (2) is met in respect of any person (“the respondent”) who is subject to the investigation.

(2) The condition in this subsection is met in respect of the respondent if the CMA has reasonable grounds to believe that—

(a) the respondent has engaged, is engaging or is likely to engage in a commercial practice constituting a relevant infringement (“the infringing practice”), or

(b) the respondent is an accessory to such a practice.

(3) The CMA may give to the respondent a notice under this section (a “provisional infringement notice”).

(4) A provisional infringement notice must—

(a) set out the grounds on which it is given, including the respondent’s acts or omissions giving rise to the CMA’s belief that the condition in subsection (2) is met;

(b) set out proposed directions for the purposes of securing that the respondent complies with subsection (5);

(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.

(5) The respondent complies with this subsection by—

(a) in the case of a respondent within subsection (2)(a), not continuing or repeating the infringing practice (where it is believed that the respondent has engaged or is engaging in that practice);

(b) in the case of a respondent within subsection (2)(b), not consenting to or conniving in the infringing practice;

(c) in either case, not engaging in the infringing practice in the course of the respondent’s business or another business;

(d) in either case, not consenting to or conniving in the carrying out of the infringing practice by a body corporate with which the respondent has a special relationship (see section 220).

(6) If the proposed directions mentioned in subsection (4)(b) include the taking by the respondent of enhanced consumer measures, the notice must state that fact and include details of the proposed measures to be taken (but section 183 applies in respect of any such proposed measures specified in a provisional infringement notice as that section applies to such measures specified in a final infringement notice).

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

(8) If the CMA is considering the imposition of a monetary penalty on the respondent (see section 182(4)(b)), the provisional infringement notice must also state—

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

(b) the proposed amount of the penalty;

(c) any further factors (in addition to those provided under subsection (4)(a)) which the CMA considers may justify the imposition of the proposed penalty and its amount.

Commencement Information

I2 S. 181 not in force at Royal Assent, see s. 339(1)

182 Final infringement notice U.K.

(1) This section applies where—

(a) the CMA has given to the respondent a provisional infringement notice under section 181,

(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—

(i) the respondent has engaged, is engaging or is likely to engage in a commercial practice constituting a relevant infringement, or

(ii) the respondent is an accessory to such a practice.

(2) The CMA may give to the respondent a notice under this section (a “final infringement notice”).

(3) In deciding whether to give a final infringement notice the CMA must, in particular, have regard to whether the respondent has previously given an undertaking under this Chapter or Chapter 3 in respect of the acts or omissions in relation to which the final infringement notice would be given.

(4) A final infringement notice may impose on the respondent a requirement to do either or both of the following—

(a) a requirement to comply with such directions as the CMA considers appropriate for or in connection with the purpose of securing that the respondent complies with section 181(5) (which may include directions to take enhanced consumer measures in accordance with section 183);

(b) subject to subsection (5), a requirement to pay a monetary penalty.

(5) In the case of a respondent within subsection (1)(c)(i), a requirement to pay a monetary penalty may be imposed only if the CMA is satisfied that the respondent has engaged, or is engaging, in a commercial practice constituting a relevant infringement (and not in respect of a practice that the CMA is satisfied that the person is likely to engage in).

(6) The amount of a monetary penalty imposed under subsection (4)(b) must be a fixed amount not exceeding £300,000 or, if higher, 10% of the total value of the turnover (if any) of the respondent.

(7) A final infringement notice must—

(a) set out the grounds on which it is given, including the respondent’s acts or omissions on account of which the notice is given;

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

(c) if a penalty is imposed by the notice under subsection (4)(b), contain the monetary penalty information (see section 203);

(d) state that the respondent has a right to appeal against the notice and the main details of that right (so far as not stated in accordance with paragraph (c)).

(8) A final infringement notice may require the respondent to publish—

(a) the notice;

(b) a corrective statement.

(9) Publication under subsection (8) must be made in such form and manner, and to such extent, as the CMA considers appropriate for the purpose of eliminating any continuing effects of the relevant infringement.

Commencement Information

I3 S. 182 not in force at Royal Assent, see s. 339(1)

183 Final infringement notice: directions to take enhanced consumer measures U.K.

(1) Directions contained in a final infringement notice may include directions requiring the respondent to take such enhanced consumer measures as the CMA considers just and reasonable.

(2) For this purpose, in deciding whether to require the taking of enhanced consumer measures the CMA must in particular consider whether any proposed enhanced consumer measures are proportionate having regard to—

(a) the likely benefit of the measures to consumers,

(b) the costs likely to be incurred by the respondent, and

(c) the likely cost to consumers of obtaining the benefit of the measures.

(3) The costs referred to in subsection (2)(b) are—

(a) the cost of the measures, and

(b) the reasonable administrative costs associated with taking the measures.

(4) Where the respondent is required by a final infringement notice to take enhanced consumer measures, the notice may include requirements for the respondent to provide information or documents to the CMA in order that the CMA may determine if the respondent is taking those measures.

(5) Subsection (6) applies if—

(a) a final infringement notice requires the taking of enhanced consumer measures offering compensation, and

(b) a settlement agreement is entered into in connection with the payment of compensation.

(6) A waiver of a person’s rights in the settlement agreement is not valid if it is a waiver of the right to bring civil proceedings in respect of conduct other than conduct which has given rise to the final infringement notice.

Commencement Information

I4 S. 183 not in force at Royal Assent, see s. 339(1)

Online interface notices U.K.

184 Online interface notices U.K.

(1) This section applies where the CMA is satisfied that a person has engaged, is engaging or is likely to engage in a commercial practice that constitutes a relevant infringement.

(2) The CMA may give a notice under this section (an “online interface notice”) to—

(a) the person that the CMA is satisfied has engaged, is engaging or is likely to engage in the commercial practice constituting the relevant infringement, or

(b) any other person (subject to subsection (3)).

(3) A notice under subsection (2)(b) may be given to a person who is outside the United Kingdom only if the person—

(a) is a United Kingdom national,

(b) is an individual who is habitually resident in the United Kingdom,

(c) is a firm established in the United Kingdom, or

(d) carries on business in the United Kingdom or by any means directs activities in the course of carrying on a business to consumers in the United Kingdom.

(4) An online interface notice may contain whatever directions the CMA considers appropriate for the purpose of requiring the person to whom it is given to do, or to co-operate with another person so that person can do, one or more of the following—

(a) remove content from, or modify content on, an online interface;

(b) disable or restrict access to an online interface;

(c) display a warning to consumers accessing an online interface;

(d) delete a fully qualified domain name and take any steps necessary to facilitate the registration of that domain name by the CMA.

(5) An online interface notice may be given to a person only if the CMA is satisfied that—

(a) there are no other available means under section 162 or under another provision of this Chapter of bringing about the cessation or prohibition of the infringement which, by themselves, would be wholly effective, and

(b) it is necessary for the directions contained in the notice to be given to avoid the risk of serious harm to the collective interests of consumers.

(6) An online interface notice must—

(a) set out the grounds on which it is given;

(b) state that the respondent has the right to appeal against the notice and the main details of that right.

(7) Where an online interface notice is given, the CMA may publish—

(a) the notice, and

(b) where known, the identity of the person who has engaged, is engaging or is likely to engage in a commercial practice which constitutes the relevant infringement.

(8) Publication under subsection (7) must be made in such form and manner as the CMA considers appropriate for the purpose of eliminating any continuing effects of the relevant infringement.

(9) For the purposes of subsection (3)(c), a firm is “established in the United Kingdom” if—

(a) it is incorporated or formed under the law of a part of the United Kingdom, or

(b) it is administered under arrangements governed by the law of a part of the United Kingdom.

(10) In subsection (4) “online interface” means any software, including a website, part of a website, an application or other digital content which—

(a) is operated by a person (“P”) acting for purposes relating to P’s business or by a person acting in the name of, or on behalf of, P, and

(b) is operated for or in connection with the purposes of giving access to, or promoting, the goods, services or digital content that P or another person supplies.

Commencement Information

I5 S. 184 not in force at Royal Assent, see s. 339(1)

Undertakings U.K.

185 Undertakings U.K.

(1) This section applies where the CMA—

(a) has started an investigation under section 180 which is continuing, and

(b) has not given a final infringement notice or an online interface notice in relation to the matter under investigation.

(2) The CMA may accept an undertaking under this section in connection with that matter from any person whom the CMA believes—

(a) has engaged, is engaging or is likely to engage in a commercial practice that constitutes a relevant infringement (“the infringing practice”), or

(b) is an accessory to such a practice.

(3) Subsections (1) to (6) of section 164 (inclusion of enhanced consumer measures in undertakings) apply to an undertaking under this section as they apply to an undertaking under section 163(2).

(4) An undertaking under this section is an undertaking to do one or more of the following—

(a) in the case of an undertaking from a person within subsection (2)(a), not to continue or repeat the infringing practice (where the CMA believes the person has engaged or is engaging in the practice);

(b) in the case of an undertaking from a person within subsection (2)(b), not to consent to or connive in the infringing practice;

(c) in either case, not to engage in the infringing practice in the course of the person’s business or another business;

(d) in either case, not to consent to, or connive in, the carrying out of the infringing practice by a body corporate with which the person has a special relationship (see section 220).

(5) Where the CMA has accepted from a person an undertaking under this section—

(a) the CMA may accept from the person any such variation of the undertaking that the CMA considers appropriate for meeting the purposes for which the undertaking was given;

(b) the CMA may release the person from the undertaking (whether on its own initiative or at the person’s request) if the CMA considers that the undertaking is no longer necessary to further those purposes.

(6) The powers of the CMA under this section do not limit other powers of the CMA to accept, vary or release undertakings under Chapter 3.

Commencement Information

I6 S. 185 not in force at Royal Assent, see s. 339(1)

186 Effect of undertakings under section 185 U.K.

(1) This section applies where the CMA accepts an undertaking from a person under section 185 in connection with a matter that it was investigating under section 180.

(2) The CMA may not give a final infringement notice or an online interface notice to the person in relation to the matter.

(3) Subsection (2) does not prevent the CMA from giving a final infringement notice or an online interface notice to the person—

(a) if and to the extent that the notice relates to anything not addressed by the acceptance of the undertaking mentioned in subsection (1);

(b) if the CMA considers that there has been a material change of circumstances since the undertaking was accepted;

(c) if the CMA has reasonable grounds for suspecting that a person from whom the undertaking was accepted has failed to adhere to one or more of the terms of the undertaking;

(d) if the CMA has reasonable grounds for suspecting that information which led it to accept the undertaking was incomplete, false or misleading in a material way.

(4) If the CMA gives a final infringement notice or an online interface notice by virtue of subsection (3)(b), (c) or (d), the undertaking is to be treated as released as from the date on which the notice is given.

Commencement Information

I7 S. 186 not in force at Royal Assent, see s. 339(1)

187 Undertakings under section 185: procedural requirements U.K.

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

(a) accept a material variation of an undertaking under section 185, or

(b) release a person from any such undertaking,

and the proposed variation or release has not been requested by the person who gave the undertaking.

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

(a) give notice to the person 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 the 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 action.

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

Commencement Information

I8 S. 187 not in force at Royal Assent, see s. 339(1)

188 Provisional breach of undertakings enforcement notice U.K.

(1) This section applies where—

(a) the CMA has accepted an undertaking from a person (“the respondent”) under section 185, and

(b) the CMA has reasonable grounds to believe that the respondent has failed to comply with one or more of the terms of the undertaking.

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

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

(a) set out the grounds on which it is given, including the respondent’s alleged 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 subsection (5);

(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) The respondent complies with this subsection by—

(a) in the case of a respondent within section 185(2)(a), not continuing or repeating the infringing practice (where it is believed that the respondent has engaged or is engaging in that practice);

(b) in the case of a respondent within section 185(2)(b), not consenting to or conniving in the infringing practice;

(c) in either case, not engaging in the infringing practice in the course of the respondent’s business or another business;

(d) in either case, not consenting to or conniving in the carrying out of the infringing practice by a body corporate with which the respondent has a special relationship (see section 220).

(6) If the CMA is considering the imposition of a monetary penalty on the respondent (see section 189(3)(b)), the provisional breach of undertakings 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.

Commencement Information

I9 S. 188 not in force at Royal Assent, see s. 339(1)

189 Final breach of undertakings enforcement notice U.K.

(1) This section applies where—

(a) the CMA has given to the respondent a provisional breach of undertakings enforcement notice under section 188,

(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 failed to comply with one or more of the terms of the undertaking.

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

(3) A final breach of undertakings enforcement notice may, subject to subsection (4), impose on the respondent a requirement to do either or both of the following—

(a) to comply with such directions as the CMA considers appropriate for the purpose of securing that the respondent complies with section 188(5);

(b) to pay a monetary penalty in respect of the failure mentioned in subsection (1)(c).

(4) A requirement under subsection (3)(b) to pay a monetary penalty may be imposed only if the CMA is satisfied that the failure in question is without reasonable excuse.

(5) A final breach of undertakings 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) if directions are given under subsection (3)(a), specify the actions to be taken by the respondent in accordance with the directions;

(d) if a penalty is imposed under subsection (3)(b), specify the monetary penalty information (see section 203);

(e) state that the respondent has a right to appeal against the notice and the main details of that right (so far as not stated in accordance with paragraph (d)).

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

Commencement Information

I10 S. 189 not in force at Royal Assent, see s. 339(1)

190 Monetary penalties under section 189: 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 undertakings 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 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 undertakings 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 requirements of the final breach of undertakings enforcement notice are complied with.

Commencement Information

I11 S. 190 not in force at Royal Assent, see s. 339(1)

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

I12 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

I13 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

I14 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

I15 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

I16 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

I17 S. 196 not in force at Royal Assent, see s. 339(1)

False or misleading information U.K.

197 Provisional false information enforcement notice U.K.

(1) This section applies if—

(a) the CMA has reasonable grounds to believe that a person (“the respondent”) has, without reasonable excuse, provided information to the CMA that is materially false or misleading, and

(b) the information was provided in connection with the carrying out by the CMA of a direct enforcement function.

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

(3) A provisional false information enforcement notice must—

(a) set out the grounds on which it is given;

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

(c) state the proposed amount of the penalty;

(d) state any further factors (in addition to those provided under paragraph (a)) which the CMA considers justify the imposition of the proposed penalty and its amount;

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

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

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

(5) In this Part “direct enforcement function” means—

(a) a function of the CMA under this Chapter, or

(b) a function of the CMA under paragraph 16B or 16C of Schedule 5 to CRA 2015.

Commencement Information

I18 S. 197 not in force at Royal Assent, see s. 339(1)

198 Final false information enforcement notice U.K.

(1) This section applies where—

(a) the CMA has given to the respondent a provisional false information enforcement notice under section 197 in connection with the provision of information,

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

(c) after considering such representations (if any), the CMA is satisfied that—

(i) the information mentioned in paragraph (a) is materially false or misleading, and

(ii) the respondent provided the false or misleading information without reasonable excuse.

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

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

(4) The amount of the penalty must be a fixed amount not exceeding £30,000 or, if higher, 1% of the total value of the turnover (if any) of the respondent.

(5) A final false information enforcement notice must—

(a) set out the grounds on which it is given;

(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).

(6) The CMA may publish a final false information enforcement notice in such manner, and to such extent, as the CMA considers appropriate.

Commencement Information

I19 S. 198 not in force at Royal Assent, see s. 339(1)

Miscellaneous and appeals U.K.

199 Statement of policy in relation to monetary penalties U.K.

(1) The CMA must prepare and publish a statement of policy in relation to the exercise of powers to impose a monetary penalty under this Chapter.

(2) The statement must include a statement about the considerations relevant to the determination of—

(a) whether to impose a penalty under this Chapter, and

(b) the nature and amount of any such penalty.

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

(4) In preparing or revising its statement of policy the CMA must consult—

(a) the Secretary of State, and

(b) such other persons as the CMA considers appropriate.

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

(6) Subsection (7) applies where the CMA proposes to impose under this Chapter a monetary penalty on a person.

(7) The CMA must have regard to the statement of policy most recently published under this section at the time of the act or omission giving rise to the penalty in deciding—

(a) whether to impose the penalty, and

(b) if so, the nature and amount of the penalty.

Commencement Information

I20 S. 199 not in force at Royal Assent, see s. 339(1)

200 Interconnected bodies corporate U.K.

(1) This section applies where—

(a) the CMA gives to a body corporate (“the respondent”) a final notice, and

(b) the interconnection condition applies in relation to the respondent.

(2) The interconnection condition applies in relation to the respondent if—

(a) at the time the final notice is given, the respondent is a member of a group of interconnected bodies corporate,

(b) at any time when requirements imposed by the final notice remain in force, the respondent becomes a member of a group of interconnected bodies corporate, or

(c) at any time when requirements imposed by the final notice remain in force, a group of interconnected bodies corporate of which the respondent is a member is increased by the addition of one or more further members.

(3) The notice may include provision for the requirements (or any particular requirements) imposed by the final notice on the respondent also to be binding upon all other members of the group (in addition to the respondent), as if each of them were the respondent.

(4) Provision may be included in a notice under subsection (3) only if the CMA considers it just, reasonable and proportionate to include that provision.

(5) A group of interconnected bodies corporate is a group consisting of two or more bodies corporate all of whom are interconnected with each other.

(6) Any two bodies corporate are interconnected—

(a) if one of them is a subsidiary of the other, or

(b) if both of them are subsidiaries of the same body corporate.

(7) Where a final notice includes provision under subsection (3), the notice must also be given to any other member of the respondent’s group in relation to which the requirements imposed by the notice are to be binding.

(8) In this section “final notice” means—

(a) a final infringement notice,

(b) an online interface notice, or

(c) a final breach of directions enforcement notice.

Commencement Information

I21 S. 200 not in force at Royal Assent, see s. 339(1)

201 Record-keeping and reporting requirements U.K.

(1) The CMA must keep a record of—

(a) undertakings it has accepted and enforcement directions it has given, and

(b) reviews it has carried out in relation to the effectiveness of such undertakings and directions.

(2) If requested to do so by the Secretary of State, the CMA must prepare a report on—

(a) the effectiveness of undertakings and enforcement directions, and

(b) the number and outcome of appeals brought under section 202.

(3) The CMA must—

(a) provide to the Secretary of State a report prepared under this section, and

(b) publish the report in such manner as the CMA considers appropriate.

(4) In this section—

(a) “undertakings” means undertakings given under section 185;

(b) “enforcement directions” includes directions given in a notice under section 192(5)(b).

Commencement Information

I22 S. 201 not in force at Royal Assent, see s. 339(1)

202 Appeals U.K.

(1) A person to whom a relevant notice is given may appeal to the appropriate appeal court against—

(a) a decision to impose a monetary penalty by virtue of the notice,

(b) the nature or amount of any such penalty, or

(c) the giving of directions by virtue of the notice.

(2) The grounds for an appeal under subsection (1)(a) or (b) are that—

(a) the decision to impose a monetary penalty was based on an error of fact,

(b) the decision was wrong in law,

(c) the amount of the penalty is unreasonable, or

(d) the decision was unreasonable or wrong for any other reason.

(3) The grounds for an appeal under subsection (1)(c) are that—

(a) the decision to give the directions was based on an error of fact,

(b) the decision was wrong in law,

(c) the nature of the directions is unreasonable, or

(d) the decision was unreasonable or wrong for any other reason.

(4) On an appeal under this section the appropriate appeal court may quash, confirm or vary the relevant notice.

(5) Except in the case of an appeal relating to a final false information enforcement notice, in addition to the powers conferred by subsection (4) the appropriate appeal court may also remit any matter that is the subject of the appeal to the CMA.

(6) An appeal under this section must be brought before the end of the applicable period beginning with the day on which the relevant notice was given to the person seeking to bring the appeal.

(7) The appropriate appeal court may extend the applicable period for bringing an appeal.

(8) Where an appeal is brought in respect of—

(a) a requirement to pay a monetary penalty, or

(b) a requirement to pay compensation under directions imposing enhanced consumer measures,

the penalty or compensation is not required to be paid until after the appeal is determined, withdrawn or otherwise dealt with.

(9) In this section—

• “applicable period” means—

  (a)

  in relation to a final false information enforcement notice, the period of 28 days;

  (b)

  in relation to any other relevant notice, the period of 60 days;

• “appropriate appeal court” means—

  (a)

  in relation to England and Wales or Northern Ireland, the High Court;

  (b)

  in relation to Scotland, the Outer House of the Court of Session;

• “relevant notice” means—

  (a)

  a final infringement notice,

  (b)

  an online interface notice,

  (c)

  a final breach of undertakings enforcement notice,

  (d)

  a final breach of directions enforcement notice, or

  (e)

  a final false information enforcement notice.

Commencement Information

I23 S. 202 not in force at Royal Assent, see s. 339(1)