8Before section 40A (but after the italic heading substituted by paragraph 7) insert—
(1)The CMA may impose a penalty on a person in accordance with section 40A where the CMA considers that—
(a)the person has, without reasonable excuse, failed to comply with a requirement imposed on the person under section 26, 26A, 27, 28, 28A or 40ZD;
(b)the person has, without reasonable excuse, obstructed an officer acting in the exercise of the officer’s powers under section 27 or under a warrant issued under section 28 or 28A;
(c)the person, having been required to produce a document under section 26, 27, 28 or 28A, has, without reasonable excuse—
(i)destroyed or otherwise disposed of, falsified or concealed the document, or
(ii)caused or permitted the document’s destruction, disposal, falsification or concealment;
(d)the person has, without reasonable excuse, provided information that was false or misleading in a material particular to the CMA in connection with any function of the CMA under this Part;
(e)the person has, without reasonable excuse, provided information that was false or misleading in a material particular to another person knowing that the information was to be used for the purpose of providing information to the CMA in connection with any function of the CMA under this Part.
(2)But the CMA may not proceed against a person under this section in relation to an act or omission which constitutes an offence under any of sections 42 to 44 if the person has, by reason of that act or omission, been found guilty of that offence.
(3)In deciding whether and, if so, how to proceed under subsection (1) the CMA must have regard to the statement of policy which was most recently published under section 40B at the time when the act or omission concerned occurred.
(4)In this section—
(a)the reference to the production of a document includes a reference to the production of a legible and intelligible copy of information recorded otherwise than in legible form;
(b)the reference to concealing a document includes a reference to destroying the means of reproducing information recorded otherwise than in legible form.
(5)Sections 112 to 115 of the Enterprise Act 2002 (supplementary provisions about penalties) apply in relation to a penalty imposed under subsection (1) as they apply in relation to a penalty imposed under section 110(1) or (1A) of that Act, with the following modifications—
(a)any reference in those provisions to the appropriate authority is to be read as a reference to the CMA only;
(b)section 114(5A) is to be read as if the words “In the case of a penalty imposed on a person by the CMA or OFCOM,” were omitted;
(c)section 114(12) is to be read as if, for paragraph (b), there were substituted—
“(b)“relevant guidance” means the statement of policy which was most recently published under section 40B of the 1998 Act at the time when the act or omission concerned occurred.””