Digital Markets, Competition and Consumers Act 2024

155 Consultation

(1) Before making an application for an enforcement order or an interim enforcement order, an enforcer must (subject to subsection (5)) engage in appropriate consultation with the person in respect of whom the order would be made (“the respondent”).

(2) Consultation is “appropriate consultation” for the purposes of subsection (1) if it is carried out for the purposes of—

(a) achieving the cessation of a relevant infringement (in a case where the infringement is occurring) and ensuring it does not recur;

(b) ensuring there is no repetition of a relevant infringement in a case where the infringement has occurred;

(c) ensuring that a relevant infringement does not take place in a case where the infringement has yet to occur;

(d) ensuring, in the case of consultation carried out by a public designated enforcer, that the respondent is aware that an application for an enforcement order may include an application for the respondent to pay a monetary penalty.

(3) Engagement under subsection (1) must be initiated by the giving of a consultation request to the respondent.

(4) A consultation request must be given by notice in writing.

(5) The requirement to consult under this section does not apply if—

(a) the CMA considers that an application for the order in question should be made without delay, or

(b) it is not reasonably practicable for the enforcer to ascertain the identity and whereabouts of the respondent.

(6) The requirement to consult under this section ceases to apply—

(a) in the case of an application for an enforcement order, at the end of the applicable period;

(b) in the case of an application for an interim enforcement order, at the end of the period of 7 days beginning with the day after the respondent receives a consultation request.

(7) In subsection (6)(a) the “applicable period” means—

(a) in a case where the respondent is a member of, or is represented by, an approved representative body, the period of 28 days beginning with the day after the respondent receives a consultation request;

(b) in any other case, the period of 14 days beginning with the day after the respondent receives a consultation request.

(8) In subsection (7)(a) “approved representative body” means a representative body that operates a consumer code which has been approved by—

(a) a public designated enforcer,

(b) a body which represents a public designated enforcer,

(c) a group of public designated enforcers, or

(d) a community interest company whose objects include the approval of consumer codes.

(9) In subsection (8)—

• “consumer code” means an agreement or set of rules regulating, with a view to safeguarding or promoting the interests of consumers, the behaviour of traders who—

  (a)

  are engaged in commercial practices, and

  (b)

  choose to be bound by the agreement or set of rules;

• “representative body” means an organisation established to represent the interests of two or more businesses in a particular sector or area.