Digital Markets, Competition and Consumers Act 2024

312 Penalties for failure to comply with notices under section 311

(1) The CMA may impose a penalty on an undertaking where it considers that the undertaking has, without reasonable excuse—

(a) failed to comply with an information notice under section 311;

(b) destroyed, otherwise disposed of, falsified or concealed, or caused or permitted the destruction, disposal, falsification or concealment of, any document which the undertaking has been required to produce by an information notice under that section;

(c) given the CMA information which is false or misleading in a material particular in connection with an information notice under that section;

(d) given information which is false or misleading in a material particular to another undertaking knowing that the information was to be used for the purpose of giving information to the CMA in connection with an information notice under that section.

(2) The amount of a penalty imposed on an undertaking under this section may be such amount as the CMA considers appropriate, provided it does not exceed the amounts set out in subsection (4).

(3) The amount of a penalty under this section 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.

(4) The maximum amounts of a penalty that may be imposed on an undertaking are—

(a) in the case of a fixed amount, an amount equal to 1% of the total value of the undertaking’s turnover (both inside and outside the United Kingdom);

(b) in the case of an amount calculated by reference to a daily rate, for each day an amount equal to 5% of the total value of the undertaking’s daily turnover (both inside and outside the United Kingdom);

(c) in the case of a combination of a fixed amount and an amount calculated by reference to a daily rate, the amounts mentioned in paragraph (a), in relation to the fixed amount, and paragraph (b), in relation to the amount calculated by reference to a daily rate.

(5) In imposing a penalty under this section by reference to a daily rate—

(a) no account is to be taken of any days before the service on the undertaking concerned of the provisional penalty notice under section 112(A1) of EA 2002 (as applied by section 313), and

(b) unless the CMA determines an earlier day (whether before or after the penalty is imposed), the amount payable ceases to accumulate at the beginning of the day on which the undertaking first complies with the requirement in question.

(6) The Secretary of State may by regulations make provision for determining the turnover (both inside and outside the United Kingdom) of an undertaking for the purposes of this section.

(7) The regulations may, among other things—

(a) make provision about amounts which are, or are not, to be included in an undertaking’s turnover;

(b) make provision about the date or dates by reference to which an undertaking’s turnover is to be determined;

(c) confer on the CMA the power to determine and make provision about matters specified in the regulations (including the matters mentioned in paragraphs (a) and (b)).

(8) Regulations under subsection (6) are subject to the negative procedure.