Digital Markets, Competition and Consumers Act 2024

189 Final breach of undertakings enforcement notice

(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.