Digital Markets, Competition and Consumers Act 2024

Chapter 7 U.K. Miscellaneous

209 Powers to amend Schedule 15 and Schedule 16 U.K.

(1) The Secretary of State may by regulations amend—

(a) the first column of the Table in Part 1 of Schedule 15 so as to add, remove or vary an entry for an enactment;

(b) the second column of that Table so as to add, remove or vary an entry providing for the authorised enforcers in respect of an enactment;

(c) the third column of that Table in consequence of amendments made under the power conferred by paragraph (a);

(d) the second column of the Table in Part 2 of Schedule 15 so as to add, remove or vary an entry providing for the authorised enforcers in respect of an obligation or rule of law;

(e) Schedule 16 so as to add, remove or vary an entry for an enactment.

(2) The power under subsection (1)(a) or (e) is exercisable so as to add or vary an entry in respect of an enactment only if, and to the extent that, one or more of the following is provided for under or by virtue of the enactment so added or varied—

(a) a duty, prohibition or restriction enforceable by criminal proceedings;

(b) a duty owed to a person that is enforceable by civil proceedings;

(c) a remedy or sanction enforceable by civil proceedings;

(d) an agreement or security relating to a supply of goods, services or digital content to be void or unenforceable to any extent;

(e) a right or remedy exercisable by a person supplying goods, services or digital content to be restricted or excluded;

(f) the avoidance (to any extent) of liability relating to the supply of goods, services or digital content to be restricted or prevented.

(3) It is immaterial for the purposes of subsection (2) whether or not—

(a) a duty, prohibition or restriction exists in relation to consumers as such;

(b) a remedy or sanction is provided for the benefit of consumers as such;

(c) proceedings have been brought in relation to the act or omission concerned;

(d) a person has been convicted of an offence in relation to the act or omission concerned.

(4) Regulations under this section are subject to the affirmative procedure.

Commencement Information

I1 S. 209 in force at Royal Assent for specified purposes, see s. 339(2)(c)

210 Rules U.K.

(1) The CMA may make rules about procedural and other matters in connection with the carrying out of its direct enforcement functions.

(2) Rules may provide for any of the CMA’s direct enforcement functions to be carried out on its behalf—

(a) by one or more members of the CMA Board (see Part 2 of Schedule 4 to the Enterprise and Regulatory Reform Act 2013);

(b) by one or more members of the CMA Panel (see Part 3 of Schedule 4 to that Act);

(c) by one or more members of staff of the CMA;

(d) jointly by one or more of the persons mentioned in paragraphs (a) to (c).

(3) Rules may (among other things) include provision as to the following matters so far as relating to the carrying out of direct enforcement functions—

(a) the form and manner in which a notice given by the CMA under a direct enforcement function is to be given (subject to section 332);

(b) the person (or persons) to whom the notice is to be given;

(c) if the CMA is required to publish the notice, the manner in which it is to do so;

(d) arrangements to ensure the protection of confidential information;

(e) the disclosure of information to persons under investigation;

(f) the form and manner in which representations may or must be made to the CMA;

(g) the procedure to be followed in relation to the holding of oral hearings as part of an investigation;

(h) the procedure to be followed in cases where a person under investigation accepts that there has been a relevant infringement of a kind to which the investigation relates;

(i) arrangements for the making of, and dealing with, complaints.

(4) In this section and section 211 “rules” means rules made under this section.

Commencement Information

I2 S. 210 in force at Royal Assent for specified purposes, see s. 339(2)(c)

211 Procedural requirements for making of rules U.K.

(1) In preparing rules the CMA must consult such persons as the CMA considers appropriate.

(2) The CMA may not bring a rule into operation until the rule has been approved by regulations made by the Secretary of State.

(3) The Secretary of State may approve a rule—

(a) in the form in which it is submitted, or

(b) subject to whatever modifications the Secretary of State considers appropriate.

(4) Where the Secretary of State proposes to approve a rule subject to modifications, the Secretary of State must—

(a) inform the CMA of the proposed modifications, and

(b) take into account any comments made by the CMA about the proposed modifications.

(5) The Secretary of State may by regulations—

(a) vary or revoke rules, or

(b) direct the CMA to vary or revoke rules in accordance with the direction.

(6) Subsections (2) to (4) apply to any variation of rules made by the CMA, except where acting under a direction given under subsection (5)(b).

(7) Regulations under this section are subject to the negative procedure.

Commencement Information

I3 S. 211 in force at Royal Assent for specified purposes, see s. 339(2)(c)

Prospective

212 Guidance U.K.

(1) The CMA must prepare and publish guidance about its general approach to the carrying out of its direct enforcement functions.

(2) Guidance under subsection (1) must provide information about the factors that the CMA will take into account in determining—

(a) whether it will exercise a power under Chapter 4 to accept, vary or release an undertaking;

(b) in cases where the exercise of any such power is exercisable only if the CMA considers a person has acted (or failed to act) without a reasonable excuse, whether a reasonable excuse exists;

(c) in a case where a monetary penalty has not been paid (or paid in full), whether to start proceedings for recovery of the penalty.

(3) Guidance under subsection (1) may include information about any other matters in connection with the carrying out of direct enforcement functions, including the factors that the CMA will take into account in determining whether to give a notice to a person in the carrying out of those functions.

(4) The CMA—

(a) must keep the guidance under review, and

(b) may from time to time revise or replace the guidance.

(5) Before issuing the first guidance under this section the CMA must consult—

(a) the Secretary of State, and

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

(6) The CMA must—

(a) before publishing the first guidance under this section, obtain the approval of the Secretary of State in respect of the proposed guidance;

(b) before revising or replacing any guidance published under this section, inform the Secretary of State of the proposed revision or replacement.

Commencement Information

I4 S. 212 not in force at Royal Assent, see s. 339(1)

Prospective

213 Defamation U.K.

For the purposes of the law relating to defamation, absolute privilege attaches to anything done by the CMA in exercise of its functions under this Part.

Commencement Information

I5 S. 213 not in force at Royal Assent, see s. 339(1)

Prospective

214 Minor and consequential amendments relating to this Part U.K.

Schedule 18 contains minor and consequential amendments relating to this Part.

Commencement Information

I6 S. 214 not in force at Royal Assent, see s. 339(1)

Prospective

215 Transitional and saving provision relating to this Part U.K.

Schedule 19 contains transitional and saving provision relating to this Part.

Commencement Information

I7 S. 215 not in force at Royal Assent, see s. 339(1)

Prospective

216 Enforcement of requirements relating to secondary ticketing U.K.

(1) CRA 2015 is amended as set out in subsections (2) to (4).

(2) In section 93 (enforcement of secondary ticketing provisions in Chapter 5 of Part 3)—

(a) after subsection (2) insert—

“(2A) The Competition and Markets Authority may also enforce the provisions of this Chapter.”;

(b) in subsection (3) for “and (2)” substitute “, (2) and (2A)”.

(3) In paragraph 11 of Schedule 5 (investigatory powers etc: enforcer’s legislation), in the table, at the appropriate place insert—

“The Competition and Markets Authority

The Breaching of Limits on Ticket Sales Regulations 2018 (S.I. 2018/735)”.

(4) In paragraph 6 of Schedule 10 (procedure for and appeals against financial penalties imposed under section 93: recovery)—

(a) in sub-paragraph (2) for “local weights and measures” substitute “enforcement”;

(b) in sub-paragraph (4) for “the Department of Enterprise, Trade and Investment” substitute “the enforcement authority which imposed the financial penalty”;

(c) in sub-paragraph (5)(a) after “Investment” insert “or by the Competition and Markets Authority”;

(d) after sub-paragraph (7) insert—

“(7A) The Competition and Markets Authority may use the proceeds of a financial penalty for the purposes of any of its functions (whether or not the function is expressed to be a function of the Authority).”

(5) In the Breaching of Limits on Ticket Sales Regulations 2018 (S.I. 2018/735), in regulation 5 (offences: prosecution and penalties), after paragraph (2) insert—

“(3) The Competition and Markets Authority may enforce these Regulations.”

Commencement Information

I8 S. 216 not in force at Royal Assent, see s. 339(1)