Competition Act 1998
1998 c. 41
An Act to make provision about competition and the abuse of a dominant position in the market; to confer powers in relation to investigations conducted in connection with Article 81 or 82 of the treaty establishing the European Community; to amend the Fair Trading Act 1973 in relation to information which may be required in connection with investigations under that Act; to make provision with respect to the meaning of “supply of services” in the Fair Trading Act 1973; and for connected purposes.
[9th November 1998]
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—
The following shall cease to have effect—
(a) the Restrictive Practices Court Act 1976 (c. 33),
(b) the Restrictive Trade Practices Act 1976 (c. 34),
(c) the Resale Prices Act 1976 (c. 53), and
(d) the Restrictive Trade Practices Act 1977 (c. 19).
2 Agreements etc. preventing, restricting or distorting competition.
(1) Subject to section 3, agreements between undertakings, decisions by associations of undertakings or concerted practices which have as their object or effect the prevention, restriction or distortion of competition within the United Kingdom and which—
(a) in the case of agreements, decisions or practices implemented, or intended to be implemented in the United Kingdom, may affect trade in the United Kingdom, or
(b) in any other case, are likely to have an immediate, substantial and foreseeable effect on trade within the United Kingdom,
are prohibited unless they are exempt in accordance with the provisions of this Part.
(2) Subsection (1) applies, in particular, to agreements, decisions or practices which—
(a) directly or indirectly fix purchase or selling prices or any other trading conditions;
(b) limit or control production, markets, technical development or investment;
(c) share markets or sources of supply;
(d) apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;
(e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) Any agreement or decision which is prohibited by subsection (1) is void.
(5) A provision of this Part which is expressed to apply to, or in relation to, an agreement is to be read as applying equally to, or in relation to, a decision by an association of undertakings or a concerted practice (but with any necessary modifications).
(6) Subsection (5) does not apply where the context otherwise requires.
(7) In this section “the United Kingdom” means, in relation to an agreement which operates or is intended to operate only in a part of the United Kingdom, that part.
(8) The prohibition imposed by subsection (1) is referred to in this Act as “the Chapter I prohibition”.
(1) The Chapter I prohibition does not apply in any of the cases in which it is excluded by or as a result of—
(a) Schedule 1 (mergers and concentrations);
(b) Schedule 2 (competition scrutiny under other enactments);
(c) Schedule 3 (planning obligations and other general exclusions). ...
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) The Secretary of State may at any time by order amend Schedule 1, with respect to the Chapter I prohibition, by—
(a) providing for one or more additional exclusions; or
(b) amending or removing any provision (whether or not it has been added by an order under this subsection).
(3) The Secretary of State may at any time by order amend Schedule 3, with respect to the Chapter I prohibition, by—
(a) providing for one or more additional exclusions; or
(b) amending or removing any provision—
(i) added by an order under this subsection; or
(ii) included in paragraph 1 ... or 9 of Schedule 3.
(4) The power under subsection (3) to provide for an additional exclusion may be exercised only if it appears to the Secretary of State that agreements which fall within the additional exclusion—
(a) do not in general have an adverse effect on competition, or
(b) are, in general, best considered under Chapter II or the Fair Trading Act 1973the Enterprise Act 2002.
(5) An order under subsection (2)(a) or (3)(a) may include provision (similar to that made with respect to any other exclusion provided by the relevant Schedule) for the exclusion concerned to cease to apply to a particular agreement.
(6) Schedule 3 also gives the Secretary of State power to exclude agreements from the Chapter I prohibition in certain circumstances.
(1) The OFT may grant an exemption from the Chapter I prohibition with respect to a particular agreement if—
(a) a request for an exemption has been made to it under section 14 by a party to the agreement; and
(b) the agreement is one to which section 9 applies.
(2) An exemption granted under this section is referred to in this Part as an individual exemption.
(3) The exemption—
(a) may be granted subject to such conditions or obligations as the OFT considers it appropriate to impose; and
(b) has effect for such period as the OFT considers appropriate.
(4) That period must be specified in the grant of the exemption.
(5) An individual exemption may be granted so as to have effect from a date earlier than that on which it is granted.
(6) On an application made in such way as may be specified by rules under section 51, the OFT may extend the period for which an exemption has effect; but, if the rules so provide, it may do so only in specified circumstances.
(1) If the OFT has reasonable grounds for believing that there has been a material change of circumstance since it granted an individual exemption, it may by notice in writing—
(a) cancel the exemption;
(b) vary or remove any condition or obligation; or
(c) impose one or more additional conditions or obligations.
(2) If the OFT has a reasonable suspicion that the information on which it based its decision to grant an individual exemption was incomplete, false or misleading in a material particular, it may by notice in writing take any of the steps mentioned in subsection (1).
(3) Breach of a condition has the effect of cancelling the exemption.
(4) Failure to comply with an obligation allows the OFT, by notice in writing, to take any of the steps mentioned in subsection (1).
(5) Any step taken by the OFT under subsection (1), (2) or (4) has effect from such time as may be specified in the notice.
(6) If an exemption is cancelled under subsection (2) or (4), the date specified in the notice cancelling it may be earlier than the date on which the notice is given.
(7) The OFT may act under subsection (1), (2) or (4) on its own initiative or on a complaint made by any person.
(1) If agreements which fall within a particular category of agreement are, in the opinion of the CMA, likely to be exempt agreements, the CMA may recommend that the Secretary of State make an order specifying that category for the purposes of this section.
(2) The Secretary of State may make an order (“a block exemption order”) giving effect to such a recommendation—
(a) in the form in which the recommendation is made; or
(b) subject to such modifications as he considers appropriate.
(3) An agreement which falls within a category specified in a block exemption order is exempt from the Chapter I prohibition.
(4) An exemption under this section is referred to in this Part as a block exemption.
(5) A block exemption order may impose conditions or obligations subject to which a block exemption is to have effect.
(6) A block exemption order may provide—
(a) that breach of a condition imposed by the order has the effect of cancelling the block exemption in respect of an agreement;
(b) that if there is a failure to comply with an obligation imposed by the order, the CMA may, by notice in writing, cancel the block exemption in respect of the agreement;
(c) that if the CMA considers that a particular agreement is not an exempt agreement, it may cancel the block exemption in respect of that agreement.
(7) A block exemption order may provide that the order is to cease to have effect at the end of a specified period.
(8) In this section—
“exempt agreement” means an agreement which is exempt from the Chapter I prohibition as a result of section 9; and
“specified” means specified in a block exemption order.
(1) A block exemption order may provide that a party to an agreement which—
(a) does not qualify for the block exemption created by the order, but
(b) satisfies specified criteria,
may notify the OFT of the agreement for the purposes of subsection (2).
(2) An agreement which is notified under any provision included in a block exemption order by virtue of subsection (1) is to be treated, as from the end of the notice period, as falling within a category specified in a block exemption order unless the OFT—
(a) is opposed to its being so treated; and
(b) gives notice in writing to the party concerned of its opposition before the end of that period.
(3) If the OFT gives notice of its opposition under subsection (2), the notification under subsection (1) is to be treated as both notification under section 14 and as a request for an individual exemption made under subsection (3) of that section.
(4) In this section “notice period” means such period as may be specified with a view to giving the OFT sufficient time to consider whether to oppose under subsection (2).
(1) Before making a recommendation under section 6(1), the CMA must—
(a) publish details of its proposed recommendation in such a way as it thinks most suitable for bringing it to the attention of those likely to be affected; and
(b) consider any representations about it which are made to it.
(2) If the Secretary of State proposes to give effect to such a recommendation subject to modifications, he must inform the CMA of the proposed modifications and take into account any comments made by the CMA .
(3) If, in the opinion of the CMA , it is appropriate to vary or revoke a block exemption order it may make a recommendation to that effect to the Secretary of State.
(4) Subsection (1) also applies to any proposed recommendation under subsection (3).
(5) Before exercising its power to vary or revoke a block exemption order (in a case where there has been no recommendation under subsection (3)), the Secretary of State must—
(a) inform the CMA of the proposed variation or revocation; and
(b) take into account any comments made by the CMA .
(6) A block exemption order may provide for a block exemption to have effect from a date earlier than that on which the order is made.
(1) An agreement is exempt from the Chapter I prohibition if it—
(a) contributes to—
(i) improving production or distribution, or
(ii) promoting technical or economic progress,
while allowing consumers a fair share of the resulting benefit; and
(b) does not—
(i) impose on the undertakings concerned restrictions which are not indispensable to the attainment of those objectives; or
(ii) afford the undertakings concerned the possibility of eliminating competition in respect of a substantial part of the products in question.
(2) In any proceedings in which it is alleged that the Chapter I prohibition is being or has been infringed by an agreement, any undertaking or association of undertakings claiming the benefit of subsection (1) shall bear the burden of proving that the conditions of that subsection are satisfied.
(A1) An agreement is exempt from the Chapter I prohibition if it falls within a category of agreements specified as exempt in an assimilated block exemption regulation.
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) An exemption from the Chapter I prohibition under this section is referred to in this Part as an assimilated exemption.
(4) An assimilated exemption—
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) ceases to have effect—
(i) if the relevant assimilated block exemption regulation ceases to have effect; or
(ii) on being cancelled by virtue of subsection (5) or (7).
(5) In such circumstances and manner as may be specified in rules made under section 51, the CMA may—
(a) impose conditions or obligations subject to which an assimilated exemption is to have effect in respect of an agreement;
(b) vary or remove any such condition or obligation;
(c) impose one or more additional conditions or obligations;
(d) cancel the exemption in respect of an agreement.
(6) In such circumstances as may be specified in rules made under section 51, the date from which cancellation of an exemption is to take effect may be earlier than the date on which notice of cancellation is given.
(7) Breach of a condition imposed by the CMA has the effect of cancelling the exemption.
(8) In exercising its powers under this section, the CMA may require any person who is a party to the agreement in question to give it such information as it may require.
(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(12) In this Part, “ assimilated block exemption regulation” means the following regulations as amended from time to time—
(a) Council Regulation (EC) 169/2009 applying rules of competition to transport by rail, road and inland waterway;
(b) Commission Regulation (EC) 906/2009 on the application of Article 81(3) of the Treaty to certain categories of agreements, decisions and concerted practices between liner shipping companies (consortia);
(c) Commission Regulation (EU) 330/2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices;
(d) Commission Regulation (EU) 461/2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices in the motor vehicle sector;
(e) Commission Regulation (EU) 1217/2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to certain categories of research and development agreements;
(f) Commission Regulation (EU) 1218/2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to certain categories of specialisation agreements;
(g) Commission Regulation (EU) 316/2014 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of technology transfer agreements.
10A Power to vary etc assimilated block exemption regulations
(1) The Secretary of State may by regulations vary or revoke an assimilated block exemption regulation.
(2) In exercising the power under subsection (1), the Secretary of State must have regard to the conditions specified in section 9(1) for exemption from the Chapter 1 prohibition.
(3) If, in the opinion of the CMA, it is appropriate to vary or revoke an assimilated block exemption regulation, the CMA may make a recommendation to that effect to the Secretary of State.
(4) Before making a recommendation under subsection (3), the CMA must—
(a) publish details of its proposed recommendation in such a way as it thinks most suitable for bringing it to the attention of those likely to be affected; and
(b) consider any representations about it which are made to it.
(5) Before exercising the power to vary or revoke an assimilated block exemption regulation (in a case where there has been no recommendation under subsection (3)), the Secretary of State must—
(a) inform the CMA of the proposed variation or revocation; and
(b) take into account any comments made by the CMA.
(1) Sections 13 and 14 provide for an agreement to be examined by the OFT on the application of a party to the agreement who thinks that it may infringe the Chapter I prohibition.
(2) Schedule 5 provides for the procedure to be followed—
(a) by any person making such an application; and
(b) by the OFT, in considering such an application.
(3) The Secretary of State may by regulations make provision as to the application of sections 13 to 16 and Schedule 5, with such modifications (if any) as may be prescribed, in cases where the OFT—
(a) has given a direction withdrawing an exclusion; or
(b) is considering whether to give such a direction.
(1) A party to an agreement who applies for the agreement to be examined under this section must—
(a) notify the OFT of the agreement; and
(b) apply to the OFT for guidance.
(2) On an application under this section, the OFT may give the applicant guidance as to whether or not, in its view, the agreement is likely to infringe the Chapter I prohibition.
(3) If the OFT considers that the agreement is likely to infringe the prohibition if it is not exempt, its guidance may indicate—
(a) whether the agreement is likely to be exempt from the prohibition under—
(i) a block exemption;
(ii) a parallel exemption; or
(iii) a section 11 exemption; or
(b) whether it would be likely to grant the agreement an individual exemption if asked to do so.
(4) If an agreement to which the prohibition applies has been notified to the OFT under this section, no penalty is to be imposed under this Part in respect of any infringement of the prohibition by the agreement which occurs during the period—
(a) beginning with the date on which notification was given; and
(b) ending with such date as may be specified in a notice in writing given to the applicant by the OFT when the application has been determined.
(5) The date specified in a notice under subsection (4)(b) may not be earlier than the date on which the notice is given.
(1) A party to an agreement who applies for the agreement to be examined under this section must—
(a) notify the OFT of the agreement; and
(b) apply to the OFT for a decision.
(2) On an application under this section, the OFT may make a decision as to—
(a) whether the Chapter I prohibition has been infringed; and
(b) if it has not been infringed, whether that is because of the effect of an exclusion or because the agreement is exempt from the prohibition.
(3) If an agreement is notified to the OFT under this section, the application may include a request for the agreement to which it relates to be granted an individual exemption.
(4) If an agreement to which the prohibition applies has been notified to the OFT under this section, no penalty is to be imposed under this Part in respect of any infringement of the prohibition by the agreement which occurs during the period—
(a) beginning with the date on which notification was given; and
(b) ending with such date as may be specified in a notice in writing given to the applicant by the OFT when the application has been determined.
(5) The date specified in a notice under subsection (4)(b) may not be earlier than the date on which the notice is given.
(1) This section applies to an agreement if the OFT has determined an application under section 13 by giving guidance that—
(a) the agreement is unlikely to infringe the Chapter I prohibition, regardless of whether or not it is exempt;
(b) the agreement is likely to be exempt under—
(i) a block exemption;
(ii) a parallel exemption; or
(iii) a section 11 exemption; or
(c) it would be likely to grant the agreement an individual exemption if asked to do so.
(2) The OFT is to take no further action under this Part with respect to an agreement to which this section applies, unless—
(a) it has reasonable grounds for believing that there has been a material change of circumstance since it gave its guidance;
(b) it has a reasonable suspicion that the information on which it based its guidance was incomplete, false or misleading in a material particular;
(c) one of the parties to the agreement applies to it for a decision under section 14 with respect to the agreement; or
(d) a complaint about the agreement has been made to it by a person who is not a party to the agreement.
(3) No penalty may be imposed under this Part in respect of any infringement of the Chapter I prohibition by an agreement to which this section applies.
(4) But the OFT may remove the immunity given by subsection (3) if—
(a) it takes action under this Part with respect to the agreement in one of the circumstances mentioned in subsection (2);
(b) it considers it likely that the agreement will infringe the prohibition; and
(c) it gives notice in writing to the party on whose application the guidance was given that it is removing the immunity as from the date specified in its notice.
(5) If the OFT has a reasonable suspicion that information—
(a) on which it based its guidance, and
(b) which was provided to it by a party to the agreement,
was incomplete, false or misleading in a material particular, the date specified in a notice under subsection (4)(c) may be earlier than the date on which the notice is given.
16 Effect of a decision that the Chapter I prohibition has not been infringed.
(1) This section applies to an agreement if the OFT has determined an application under section 14 by making a decision that the agreement has not infringed the Chapter I prohibition.
(2) The OFT is to take no further action under this Part with respect to the agreement unless—
(a) it has reasonable grounds for believing that there has been a material change of circumstance since it gave its decision; or
(b) it has a reasonable suspicion that the information on which it based its decision was incomplete, false or misleading in a material particular.
(3) No penalty may be imposed under this Part in respect of any infringement of the Chapter I prohibition by an agreement to which this section applies.
(4) But the OFT may remove the immunity given by subsection (3) if—
(a) it takes action under this Part with respect to the agreement in one of the circumstances mentioned in subsection (2);
(b) it considers that it is likely that the agreement will infringe the prohibition; and
(c) it gives notice in writing to the party on whose application the decision was made that it is removing the immunity as from the date specified in its notice.
(5) If the OFT has a reasonable suspicion that information—
(a) on which it based its decision, and
(b) which was provided to it by a party to the agreement,
was incomplete, false or misleading in a material particular, the date specified in a notice under subsection (4)(c) may be earlier than the date on which the notice is given.
(1) Subject to section 19, any conduct on the part of one or more undertakings which amounts to the abuse of a dominant position in a market is prohibited if it may affect trade within the United Kingdom.
(2) Conduct may, in particular, constitute such an abuse if it consists in—
(a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;
(b) limiting production, markets or technical development to the prejudice of consumers;
(c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;
(d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of the contracts.
(3) In this section—
“dominant position” means a dominant position within the United Kingdom; and
“the United Kingdom” means the United Kingdom or any part of it.
(4) The prohibition imposed by subsection (1) is referred to in this Act as “the Chapter II prohibition”.
(1) The Chapter II prohibition does not apply in any of the cases in which it is excluded by or as a result of—
(a) Schedule 1 (mergers and concentrations); or
(b) Schedule 3 (general exclusions).
(2) The Secretary of State may at any time by order amend Schedule 1, with respect to the Chapter II prohibition, by—
(a) providing for one or more additional exclusions; or
(b) amending or removing any provision (whether or not it has been added by an order under this subsection).
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) Schedule 3 also gives the Secretary of State power to provide that the Chapter II prohibition is not to apply in certain circumstances.
(1) Sections 21 and 22 provide for conduct of a person which that person thinks may infringe the Chapter II prohibition to be considered by the OFT on the application of that person.
(2) Schedule 6 provides for the procedure to be followed—
(a) by any person making an application, and
(b) by the OFT, in considering an application.
(1) A person who applies for conduct to be considered under this section must—
(a) notify the OFT of it; and
(b) apply to the OFT for guidance.
(2) On an application under this section, the OFT may give the applicant guidance as to whether or not, in its view, the conduct is likely to infringe the Chapter II prohibition.
(1) A person who applies for conduct to be considered under this section must—
(a) notify the OFT of it; and
(b) apply to the OFT for a decision.
(2) On an application under this section, the OFT may make a decision as to—
(a) whether the Chapter II prohibition has been infringed; and
(b) if it has not been infringed, whether that is because of the effect of an exclusion.
(1) This section applies to conduct if the OFT has determined an application under section 21 by giving guidance that the conduct is unlikely to infringe the Chapter II prohibition.
(2) The OFT is to take no further action under this Part with respect to the conduct to which this section applies, unless—
(a) it has reasonable grounds for believing that there has been a material change of circumstance since it gave its guidance;
(b) it has a reasonable suspicion that the information on which it based its guidance was incomplete, false or misleading in a material particular; or
(c) a complaint about the conduct has been made to it.
(3) No penalty may be imposed under this Part in respect of any infringement of the Chapter II prohibition by conduct to which this section applies.
(4) But the OFT may remove the immunity given by subsection (3) if—
(a) it takes action under this Part with respect to the conduct in one of the circumstances mentioned in subsection (2);
(b) it considers that it is likely that the conduct will infringe the prohibition; and
(c) it gives notice in writing to the undertaking on whose application the guidance was given that it is removing the immunity as from the date specified in its notice.
(5) If the OFT has a reasonable suspicion that information—
(a) on which it based its guidance, and
(b) which was provided to it by an undertaking engaging in the conduct,
was incomplete, false or misleading in a material particular, the date specified in a notice under subsection (4)(c) may be earlier than the date on which the notice is given.
24 Effect of a decision that the Chapter II prohibition has not been infringed.
(1) This section applies to conduct if the OFT has determined an application under section 22 by making a decision that the conduct has not infringed the Chapter II prohibition.
(2) The OFT is to take no further action under this Part with respect to the conduct unless—
(a) it has reasonable grounds for believing that there has been a material change of circumstance since it gave its decision; or
(b) it has a reasonable suspicion that the information on which it based its decision was incomplete, false or misleading in a material particular.
(3) No penalty may be imposed under this Part in respect of any infringement of the Chapter II prohibition by conduct to which this section applies.
(4) But the OFT may remove the immunity given by subsection (3) if—
(a) it takes action under this Part with respect to the conduct in one of the circumstances mentioned in subsection (2);
(b) it considers that it is likely that the conduct will infringe the prohibition; and
(c) it gives notice in writing to the undertaking on whose application the decision was made that it is removing the immunity as from the date specified in its notice.
(5) If the OFT has a reasonable suspicion that information—
(a) on which it based its decision, and
(b) which was provided to it by an undertaking engaging in the conduct,
was incomplete, false or misleading in a material particular, the date specified in a notice under subsection (4)(c) may be earlier than the date on which the notice is given.
(1) In any of the following cases, the CMA may conduct an investigation.
(2) The first case is where there are reasonable grounds for suspecting that there is an agreement which—
(a) may affect trade within the United Kingdom; and
(b) has as its object or effect the prevention, restriction or distortion of competition within the United Kingdom.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) The third case is where there are reasonable grounds for suspecting that the Chapter II prohibition has been infringed.
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) The fifth case is where there are reasonable grounds for suspecting that, at some time in the past, there was an agreement which at that time—
(a) may have affected trade within the United Kingdom; and
(b) had as its object or effect the prevention, restriction or distortion of competition within the United Kingdom.
(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8) Subsection (2) does not permit an investigation to be conducted in relation to an agreement if the CMA —
(a) considers that the agreement is exempt from the Chapter I prohibition as a result of a block exemption or an assimilated exemption; and
(b) does not have reasonable grounds for suspecting that the circumstances may be such that it could exercise its power to cancel the exemption.
(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(10) Subsection (6) does not permit an investigation to be conducted in relation to any agreement if the CMA considers that, at the time in question, the agreement was exempt from the Chapter I prohibition as a result of a block exemption or an assimilated exemption.
(11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(12) It is immaterial for the purposes of subsection (6) ... whether the agreement in question remains in existence.
25A Power of CMA to publish notice of investigation etc
(1) Where the CMA decides to conduct an investigation it may publish a notice which may, in particular—
(a) state its decision to do so;
(b) indicate which of subsections (2), (4) and (6) of section 25 the investigation falls under;
(c) summarise the matter being investigated;
(d) identify any undertaking whose activities are being investigated as part of the investigation;
(e) identify the market which is or was affected by the matter being investigated.
(1A) Where the CMA assists an overseas regulator in carrying out any of its functions which correspond or are similar to the functions of the CMA under this Part (see Chapter 2 of Part 5 of the Digital Markets, Competition and Consumers Act 2024), the CMA may publish a notice which may, in particular—
(a) state its decision to do so;
(b) identify the overseas regulator concerned;
(c) summarise the matter in respect of which the assistance is to be provided;
(d) identify any undertaking in respect of which the assistance is to be provided;
(e) identify the market which is or was affected by the matter in respect of which the assistance is to be provided.
(2) Section 57 does not apply to a notice under subsection (1) or (1A) to the extent that it includes information other than information mentioned in the subsection concerned.
(3) Subsection (4) applies if—
(a) the CMA has published a notice under subsection (1) which identifies an undertaking whose activities are being investigated, and
(b) the CMA subsequently decides (without making a decision within the meaning given by section 31(2)) to terminate the investigation of the activities of the undertaking so identified.
(4) The CMA must publish a notice stating that the activities of the undertaking in question are no longer being investigated.
25B Duty to preserve documents relevant to investigations
(1) Subsection (2) applies where a person knows or suspects that—
(a) an investigation by the CMA under section 25 is being or is likely to be carried out , or
(b) the CMA is assisting, or is likely to assist, an overseas regulator in carrying out any of its functions which correspond or are similar to the functions of the CMA under this Part (see Chapter 2 of Part 5 of the Digital Markets, Competition and Consumers Act 2024).
(2) The person must not—
(a) falsify, conceal, destroy or otherwise dispose of, or
(b) cause or permit the falsification, concealment, destruction or disposal of,
a document which the person knows or suspects is or would be relevant to the investigation or to the provision of such assistance.
(3) In this section, the reference to concealing a document includes a reference to destroying the means of reproducing information recorded otherwise than in legible form.
26 Investigations: powers to require documents and information
(1) For the purposes of an investigation under section 25, the CMA may require any person to produce to it a specified document, or to provide it with specified information, which it considers relates to any matter relevant to the investigation.
(2) The power conferred by subsection (1) is to be exercised by a notice in writing.
(3) A notice under subsection (2) must ...—
(a) indicate the subject matter and purpose of the investigation; and
(b) include information about the possible consequences of failing to comply with the notice.
(4) In subsection (1) “specified” means—
(a) specified, or described, in the notice; or
(b) falling within a category which is specified, or described, in the notice.
(5) The CMA may also specify in the notice—
(a) the time and place at which any document is to be produced or any information is to be provided;
(b) the manner and form in which it is to be produced or provided.
(6) The power under this section to require a person to produce a document includes power—
(a) if the document is produced—
(i) to take copies of it or extracts from it;
(ii) to require him, or any person who is a present or past officer of his, or is or was at any time employed by him, to provide an explanation of the document;
(b) if the document is not produced, to require him to state, to the best of his knowledge and belief, where it is.
(1) For the purposes of an investigation, the CMA may give notice to an individual ... requiring the individual to answer questions with respect to any matter relevant to the investigation—
(a) at a place or in a manner (which may be remote) specified in the notice, and
(b) either at a time so specified or on receipt of the notice.
(2) The CMA must give a copy of the notice under subsection (1) to any relevant undertaking with which the individual has a current connection at the time the notice is given to the individual.
(3) The CMA must take such steps as are reasonable in all the circumstances to comply with the requirement under subsection (2) before the time at which the individual is required to answer questions.
(4) Where the CMA does not comply with the requirement under subsection (2) before the time mentioned in subsection (3), it must comply with that requirement as soon as practicable after that time.
(5) A notice under subsection (1) must be in writing and must ...—
(a) indicate the subject matter and purpose of the investigation, and
(b) include information about the possible consequences of failing to comply with the notice.
(6) For the purposes of this section, an individual has a current connection with an undertaking if, at the time in question, the individual is—
(a) concerned in the management or control of the undertaking, or
(b) employed by, or otherwise working for, the undertaking.
(7) In this section, a “relevant undertaking” means an undertaking whose activities are being investigated as part of the investigation in question.
27 Power to enter business premises without a warrant
(1) Any officer of the CMA who is authorised in writing by the CMA to do so (“an investigating officer”) may enter any business premises in connection with an investigation under section 25.
(2) No investigating officer is to enter any premises in the exercise of his powers under this section unless he has given to the occupier of the premises a written notice which—
(a) gives at least two working days’ notice of the intended entry;
(b) indicates the subject matter and purpose of the investigation; and
(c) includes information about the possible consequences of failing to comply with the notice.
(3) Subsection (2) does not apply—
(a) if the CMA has a reasonable suspicion that the premises are, or have been, occupied by—
(i) a party to an agreement which it is investigating section 25; or
(ii) an undertaking the conduct of which it is investigating under section 25; or
(b) if the investigating officer has taken all such steps as are reasonably practicable to give notice but has not been able to do so.
(4) In a case falling within subsection (3), the power of entry conferred by subsection (1) is to be exercised by the investigating officer on production of—
(a) evidence of his authorisation; and
(b) a document containing the information referred to in subsection (2)(b) and (c).
(5) An investigating officer entering any premises under this section may—
(a) take with him such equipment as appears to him to be necessary;
(b) require any person on the premises—
(i) to produce any document which he considers relates to any matter relevant to the investigation; and
(ii) if the document is produced, to provide an explanation of it;
(c) require any person to state, to the best of his knowledge and belief, where any such document is to be found;
(d) take copies of, or extracts from, any document which is produced;
(e) require any information which is stored in any electronic form and is accessible from the premises and which the investigating officer considers relates to any matter relevant to the investigation, to be produced in a form—
(i) in which it can be taken away, and
(ii) in which it is visible and legible or from which it can readily be produced in a visible and legible form.
(f) take any steps which appear to be necessary for the purpose of preserving or preventing interference with any document which he considers relates to any matter relevant to the investigation.
(6) In this section “business premises” means premises (or any part of premises) not used as a dwelling.
28 Power to enter business premises under a warrant.
(1) On an application made to it by the CMA, the court or the Tribunal may issue a warrant if it is satisfied that—
(a) there are reasonable grounds for suspecting that there are on or accessible from any business premises documents—
(i) the production of which has been required under section 26 or 27; and
(ii) which have not been produced as required;
(b) there are reasonable grounds for suspecting that—
(i) there are on or accessible from any business premises documents which the CMA has power under section 26 to require to be produced; and
(ii) if the documents were required to be produced, they would not be produced but would be concealed, removed, tampered with or destroyed; or
(c) an investigating officer has attempted to enter premises in the exercise of his powers under section 27 but has been unable to do so and that there are reasonable grounds for suspecting that there are on or accessible from the premises documents the production of which could have been required under that section.
(2) A warrant under this section shall authorise a named officer of the CMA , and any other of the “CMA's officers whom the CMA has authorised in writing to accompany the named officer—
(a) to enter the premises specified in the warrant, using such force as is reasonably necessary for the purpose;
(b) to search the premises and take copies of, or extracts from, any document appearing to be of a kind in respect of which the application under subsection (1) was granted (“the relevant kind”);
(c) to take possession of any documents appearing to be of the relevant kind if—
(i) such action appears to be necessary for preserving the documents or preventing interference with them; or
(ii) it is not reasonably practicable to take copies of the documents on the premises;
(d) to take any other steps which appear to be necessary for the purpose mentioned in paragraph (c)(i);
(e) to require any person to provide an explanation of any document appearing to be of the relevant kind or to state, to the best of his knowledge and belief, where it may be found;
(f) to require any information which is stored in any electronic form and is accessible from the premises ... to be produced in a form—
(i) in which it can be taken away, and
(ii) in which it is visible and legible or from which it can readily be produced in a visible and legible form;
(g) to operate any equipment found on the premises for the purposes of producing such information in such a form;
(h) to require any person on the premises to give the named officer any assistance the named officer may reasonably require (including for the purposes of paragraphs (f) and (g));
(i) to take copies of, or take possession of, anything produced in accordance with paragraph (f) or (g) which the named officer considers relates to any matter relevant to the investigation.
(3) If, in the case of a warrant under subsection (1)(b), the court or (as the case may be) the Tribunal is satisfied that it is reasonable to suspect that there are also on the premises other documents relating to the investigation concerned, the warrant shall also authorise action mentioned in subsection (2) to be taken in relation to any such document.
(3A) A warrant under this section may authorise persons specified in the warrant to accompany the named officer who is executing it.
(4) Any person entering premises by virtue of a warrant under this section may take with him such equipment as appears to him to be necessary.
(5) On leaving any premises which he has entered by virtue of a warrant under this section, the named officer must, if the premises are unoccupied or the occupier is temporarily absent, leave them as effectively secured as he found them.
(6) A warrant under this section continues in force until the end of the period of one month beginning with the day on which it is issued.
(7) Any document of which possession is taken under subsection (2)(c) may be retained for a period of three months.
(7A) An application for a warrant under this section must be made—
(a) in the case of an application to the court, in accordance with rules of court;
(b) in the case of an application to the Tribunal, in accordance with Tribunal rules.
(8) In this section “business premises” has the same meaning as in section 27.
28A Power to enter domestic premises under a warrant
(1) On an application made to it by the CMA, the court or the Tribunal may issue a warrant if it is satisfied that—
(a) there are reasonable grounds for suspecting that there are on or accessible from any domestic premises documents—
(i) the production of which has been required under section 26; and
(ii) which have not been produced as required; or
(b) there are reasonable grounds for suspecting that—
(i) there are on or accessible from any domestic premises documents which the CMA has power under section 26 to require to be produced; and
(ii) if the documents were required to be produced, they would not be produced but would be concealed, removed, tampered with or destroyed.
(2) A warrant under this section shall authorise a named officer of the CMA, and any other of its officers whom the CMA has authorised in writing to accompany the named officer—
(a) to enter the premises specified in the warrant, using such force as is reasonably necessary for the purpose;
(b) to search the premises and take copies of, or extracts from, any document appearing to be of a kind in respect of which the application under subsection (1) was granted (“the relevant kind”);
(c) to take possession of any documents appearing to be of the relevant kind if—
(i) such action appears to be necessary for preserving the documents or preventing interference with them; or
(ii) it is not reasonably practicable to take copies of the documents on the premises;
(d) to take any other steps which appear to be necessary for the purpose mentioned in paragraph (c)(i);
(e) to require any person to provide an explanation of any document appearing to be of the relevant kind or to state, to the best of his knowledge and belief, where it may be found;
(f) to require any information which is stored in any electronic form and is accessible from the premises ... to be produced in a form—
(i) in which it can be taken away, and
(ii) in which it is visible and legible or from which it can readily be produced in a visible and legible form;
(g) to operate any equipment found on the premises for the purposes of producing such information in such a form;
(h) to require any person on the premises to give the named officer any assistance the named officer may reasonably require (including for the purposes of paragraphs (f) and (g));
(i) to take copies of, or take possession of, anything produced in accordance with paragraph (f) or (g) which the named officer considers relates to any matter relevant to the investigation.
(3) If, in the case of a warrant under subsection (1)(b), the court or (as the case may be) the Tribunal is satisfied that it is reasonable to suspect that there are also on the premises other documents relating to the investigation concerned, the warrant shall also authorise action mentioned in subsection (2) to be taken in relation to any such document.
(4) A warrant under this section may authorise persons specified in the warrant to accompany the named officer who is executing it.
(5) Any person entering premises by virtue of a warrant under this section may take with him such equipment as appears to him to be necessary.
(6) On leaving any premises which he has entered by virtue of a warrant under this section, the named officer must, if the premises are unoccupied or the occupier is temporarily absent, leave them as effectively secured as he found them.
(7) A warrant under this section continues in force until the end of the period of one month beginning with the day on which it is issued.
(8) Any document of which possession is taken under subsection (2)(c) may be retained for a period of three months.
(8A) An application for a warrant under this section must be made—
(a) in the case of an application to the court, in accordance with rules of court;
(b) in the case of an application to the Tribunal, in accordance with Tribunal rules.
(9) In this section, “domestic premises” means premises (or any part of premises) that are used as a dwelling and are—
(a) premises also used in connection with the affairs of an undertaking or association of undertakings; or
(b) premises where documents relating to the affairs of an undertaking or association of undertakings are kept.
29 Entry of premises under warrant: supplementary.
(1) A warrant issued under section 28 or 28A must ...—
(a) indicate the subject matter and purpose of the investigation;
(b) include information about the possible consequences of failing to comply with the notice.
(2) The powers conferred by section 28 or 28A are to be exercised on production of a warrant issued under that section.
(3) If there is no one at the premises when the named officer proposes to execute such a warrant he must, before executing it—
(a) take such steps as are reasonable in all the circumstances to inform the occupier of the intended entry; and
(b) if the occupier is informed, afford him or his legal or other representative a reasonable opportunity to be present when the warrant is executed.
(4) If the named officer is unable to inform the occupier of the intended entry he must, when executing the warrant, leave a copy of it in a prominent place on the premises.
(5) In this section—
“named officer” means the officer named in the warrant; and
“occupier”, in relation to any premises, means a person whom the named officer reasonably believes is the occupier of those premises.
(1) A person shall not be required, under any provision of this Part, to produce or disclose a privileged communication.
(1A) Nothing in section 28 or 28A authorises an officer to produce or take possession of, or make copies of or take extracts from, anything which, by virtue of subsection (1), a person could not be required to produce or disclose under this Part.
(2) “Privileged communication” means a communication—
(a) between a professional legal adviser and his client, or
(b) made in connection with, or in contemplation of, legal proceedings and for the purposes of those proceedings,
which in proceedings in the High Court would be protected from disclosure on grounds of legal professional privilege.
(3) In the application of this section to Scotland—
(a) references to the High Court are to be read as references to the Court of Session; and
(b) the reference to legal professional privilege is to be read as a reference to confidentiality of communications.
(1) A statement made by a person in response to a requirement imposed by virtue of any of sections 26, 27 to 28A and 40ZD may not be used in evidence against him on a prosecution for an offence under section 188 of the Enterprise Act 2002 unless, in the proceedings—
(a) in giving evidence, he makes a statement inconsistent with it, and
(b) evidence relating to it is adduced, or a question relating to it is asked, by him or on his behalf.
(2) A statement by an individual in response to a requirement imposed by virtue of section 26A (a “section 26A statement”) may only be used in evidence against the individual—
(a) on a prosecution for an offence under section 44, or
(b) on a prosecution for some other offence in a case falling within subsection (3).
(3) A prosecution falls within this subsection if, in the proceedings—
(a) in giving evidence, the individual makes a statement inconsistent with the section 26A statement, and
(b) evidence relating to the section 26A statement is adduced, or a question relating to it is asked, by or on behalf of the individual.
(4) A section 26A statement may not be used in evidence against an undertaking with which the individual who gave the statement has a connection on a prosecution for an offence unless the prosecution is for an offence under section 44.
(5) For the purposes of subsection (4), an individual has a connection with an undertaking if he or she is or was—
(a) concerned in the management or control of the undertaking, or
(b) employed by, or otherwise working for, the undertaking.
(1) If as a result of an investigation the CMA proposes to make a decision, the CMA must—
(a) give written notice to the person (or persons) likely to be affected by the proposed decision; and
(b) give that person (or those persons) an opportunity to make representations.
(2) For the purposes of this section and sections 31A and 31B “decision” means a decision of the CMA —
(a) that the Chapter I prohibition has been infringed; or
(b) that the Chapter II prohibition has been infringed;
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) Subsection (2) applies in a case where the CMA has begun an investigation under section 25 but has not made a decision (within the meaning given by section 31(2)).
(2) For the purposes of addressing the competition concerns it has identified, the CMA may accept from such person (or persons) concerned as it considers appropriate commitments to take such action (or refrain from taking such action) as it considers appropriate.
(2A) But the CMA may not accept commitments from a person unless it has provided the person with information about the possible consequences of failing to adhere to the commitments.
(3) At any time when commitments are in force the CMA may accept from the person (or persons) who gave the commitments—
(a) a variation of them if it is satisfied that the commitments as varied will address its current competition concerns;
(b) commitments in substitution for them if it is satisfied that the new commitments will address its current competition concerns.
(4) Commitments under this section—
(a) shall come into force when accepted; and
(b) may be released by the CMA where—
(i) it is requested to do so by the person (or persons) who gave the commitments; or
(ii) it has reasonable grounds for believing that the competition concerns referred to in subsection (2) or (3) no longer arise.
(5) The provisions of Schedule 6A to this Act shall have effect with respect to procedural requirements for the acceptance, variation and release of commitments under this section.
(1) Subsection (2) applies if the CMA has accepted commitments under section 31A (and has not released them).
(2) In such a case, the CMA shall not—
(a) continue the investigation,
(b) make a decision (within the meaning of section 31(2)), or
(c) give a direction under section 35,
in relation to the agreement or conduct which was the subject of the investigation (but this subsection is subject to subsections (3) and (4)).
(3) Nothing in subsection (2) prevents the CMA from taking any action in relation to competition concerns which are not addressed by commitments accepted by it.
(4) Subsection (2) also does not prevent the CMA from continuing the investigation, making a decision, or giving a direction where—
(a) it has reasonable grounds for believing that there has been a material change of circumstances since the commitments were accepted;
(b) it has reasonable grounds for suspecting that a person has failed to adhere to one or more of the terms of the commitments; or
(c) it has reasonable grounds for suspecting that information which led it to accept the commitments was incomplete, false or misleading in a material particular.
(5) If, pursuant to subsection (4), the CMA makes a decision or gives a direction the commitments are to be treated as released from the date of that decision or direction.