Change 1 Article Choose an article Title and introductory text 1 Overview 2 Designation of undertaking 3 Digital activities 4 Link to the United Kingdom 5 Substantial and entrenched market power 6 Position of strategic significance 7 The turnover condition 8 Turnover of an undertaking 9 Initial SMS investigations 10 Further SMS investigations 11 Procedure relating to SMS investigations 12 Closing an initial SMS investigation without a decision 13 Consultation on proposed decision 14 Outcome of SMS investigations 15 Notice requirements: decisions about whether to designate 16 Notice requirements: decisions to revoke a designation 17 Existing obligations 18 Designation period 19 Power to impose conduct requirements 20 Permitted types of conduct requirement 21 Content of notice imposing a conduct requirement 22 Revocation of conduct requirements 23 Transitional provision relating to conduct requirements etc 24 Consultation in relation to a conduct requirement 25 Duty to keep conduct requirements under review 26 Power to begin a conduct investigation 27 Consideration of representations 28 Closing a conduct investigation without making a finding 29 Countervailing benefits exemption 30 Notice of findings 31 Enforcement orders 32 Interim enforcement orders 33 Duration of enforcement orders 34 Revocation of enforcement orders 35 Duty to keep enforcement orders under review 36 Commitments 37 Duty to keep commitments under review 38 Power to adopt final offer mechanism 39 Collective submissions 40 Final offer mechanism 41 Final offers: outcome 42 Final offer orders: supplementary 43 Decision not to make final offer order 44 Duration and revocation of final offer orders 45 Duty to keep final offer orders under review 46 Power to make pro-competition interventions 47 Power to begin a PCI investigation etc 48 Procedure relating to PCI investigations 49 Consultation on proposed PCI decision 50 PCI decision 51 Pro-competition orders 52 Replacement of pro-competition orders 53 Duration and revocation etc of pro-competition orders 54 Consultation 55 Duty to review pro-competition orders etc 56 Commitments 57 Duty to report possible mergers etc 58 Qualifying status 59 Value of consideration 60 Content of report etc 61 Application of the duty to report etc 62 Acceptance of report 63 Delay to possible mergers etc 64 Timing of a reportable event 65 Authorisation for one person to act for another 66 Applications for review of decisions relating to mergers 67 Regulations about duty to report 68 Duty to keep compliance under review 69 Power to require information 70 Requirement to name a senior manager 71 Power of access 72 Power to interview 73 Use of interview statements in prosecution 74 Power to enter business premises without a warrant 75 Power to enter premises under a warrant 76 Power to enter premises under a warrant: supplementary 77 Amendments to the Criminal Justice and Police Act 2001 78 Application for a warrant 79 Reports by skilled persons 80 Duty to preserve information 81 Privileged communications 82 Power of CMA to publish notice of investigative assistance 83 Nominated officer 84 Compliance reports 85 Penalties for failure to comply with competition requirements 86 Amount of penalties under section 85 87 Penalties for failure to comply with investigative requirements 88 Amount of penalties under section 87 89 Procedure and appeals etc 90 Calculation of daily rates and turnover 91 Statement of policy on penalties 92 Monetary penalties: criminal proceedings and convictions 93 Destroying or falsifying information 94 False or misleading information 95 Obstructing an officer 96 Offences by officers of a body corporate etc 97 Offences: limits on extra-territorial jurisdiction 98 Sentences 99 Director disqualification 100 Enforcement of requirements 101 Rights to enforce requirements of this Part 102 Treatment of CMA breach decisions etc 103 Applications for review etc 104 Extension etc of periods 105 Extensions: supplementary 106 Exercise and delegation of functions 107 Coordination with relevant regulators 108 Recommendations to the CMA 109 Information sharing 110 Power to charge levy 111 Extra-territorial application 112 Defamation 113 Consultation and publication of documents 114 Guidance 115 Protected disclosures 116 Restriction on disclosure orders 117 Groups 118 General interpretation 119 Removal of requirement for agreements etc to be implemented in the UK 120 Repeal of exclusions relating to the European Coal and Steel Community 121 Duty to preserve documents relevant to investigations 122 Production of information authorised by warrant 123 Additional powers of seizure from domestic premises 124 Standard of review on appeals against interim measures directions 125 Declaratory relief 126 Exemplary damages 127 Relevant merger situations and special merger situations 128 Fast-track references under sections 22 and 33 of EA 2002 129 Mergers of energy network enterprises 130 Mergers involving newspaper enterprises and foreign powers 131 Mutual agreements to extend time-limits: duty to make reference cases 132 Mutual agreements to extend time-limits: public interest cases 133 Publication of merger notices online 134 Market studies: removal of time-limit on pre-reference consultation 135 Power to make a reference after previously deciding not to do so 136 Scope of market investigations 137 Acceptance of undertakings at any stage of a market study or investigation 138 Final undertakings and orders: power to conduct trials 139 Duty of CMA to monitor undertakings and orders 140 Taking action in relation to regulated markets 141 Production of information authorised by warrant 142 Attendance of witnesses etc 143 Civil penalties etc in connection with competition matters 144 Service and extra-territoriality of notices under CA 1998 and EA 2002 145 Orders and regulations under CA 1998 and EA 2002 146 Meaning of “working day” in Parts 3 and 4 of EA 2002 147 Overview 148 Relevant infringements 149 The UK connection condition 150 The specified prohibition condition 151 Enforcers 152 Designation criteria 153 Applications 154 CMA directions to other enforcers 155 Consultation 156 Enforcement orders and undertakings 157 Enforcement orders and undertakings: enhanced consumer measures 158 Enforcement orders: requirement to pay monetary penalty 159 Interim enforcement orders and undertakings 160 Applications 161 Online interface orders 162 Interim online interface orders 163 Acceptance of undertakings by enforcers 164 Undertakings under section 163: enhanced consumer measures 165 Undertakings under section 163: procedural requirements 166 Consumer protection orders or undertakings to court: further proceedings 167 Undertakings to public designated enforcers: further proceedings 168 Monetary penalties under sections 166 and 167: amount 169 Notification requirements: applications 170 Notification requirements: undertakings 171 Notification requirements: proceedings 172 Notification requirements: convictions and judgments 173 Appropriate court 174 Effect of orders in other parts of the United Kingdom 175 Evidence 176 Interconnected bodies corporate 177 Enhanced consumer measures: private designated enforcers 178 Substantiation of claims 179 Crown application 180 Power of CMA to investigate suspected infringements 181 Provisional infringement notice 182 Final infringement notice 183 Final infringement notice: directions to take enhanced consumer measures 184 Online interface notices 185 Undertakings 186 Effect of undertakings under section 185 187 Undertakings under section 185: procedural requirements 188 Provisional breach of undertakings enforcement notice 189 Final breach of undertakings enforcement notice 190 Monetary penalties under section 189: amount 191 Provisional breach of directions enforcement notice 192 Final breach of directions enforcement notice 193 Monetary penalties under section 192: amount 194 Powers of court to enforce directions 195 Substantiation of claims 196 Variation or revocation of directions 197 Provisional false information enforcement notice 198 Final false information enforcement notice 199 Statement of policy in relation to monetary penalties 200 Interconnected bodies corporate 201 Record-keeping and reporting requirements 202 Appeals 203 Information to accompany orders or notices imposing monetary penalties 204 Determination of turnover 205 Power to amend amounts 206 Recovery of monetary penalties 207 Monetary penalties: further provision 208 Investigatory powers of enforcers 209 Powers to amend Schedule 15 and Schedule 16 210 Rules 211 Procedural requirements for making of rules 212 Guidance 213 Defamation 214 Minor and consequential amendments relating to this Part 215 Transitional and saving provision relating to this Part 216 Enforcement of requirements relating to secondary ticketing 217 Supply of goods or digital content 218 Supply of services 219 Accessories 220 Special relationships 221 Enhanced consumer measures 222 Other interpretative provisions 223 Index of defined expressions 224 Overview 225 Prohibition of unfair commercial practices 226 Misleading actions 227 Misleading omissions 228 Aggressive practices 229 Contravention of the requirements of professional diligence 230 Omission of material information from invitation to purchase 231 Public enforcement 233 Rights of redress: further provision 236 Inertia selling 237 Offences 238 Defence of due diligence and innocent publication 239 Offences: criminal liability of others 240 Penalty for offences 241 Time limit for prosecution 242 Powers to amend this Chapter 243 Crown application 244 Validity of agreements 245 Meaning of “transactional decision” 246 Meaning of “average consumer”: general 247 Meaning of “average consumer”: vulnerable persons 248 Meaning of “product” 249 General interpretation 250 Index of defined terms 251 Consequential amendments relating to this Chapter 252 Transitional and saving provision relating to this Chapter 255 Excluded contracts 256 Pre-contract information 258 Reminder notices 267 Cancellation of subscription contract: further provision 277 Power to make further provision in connection with this Chapter 282 Meaning of “consumer savings scheme contract” 283 Other defined terms 284 Excluded arrangements 285 Insolvency protection requirement 286 Insurance arrangements 287 Trust arrangements 288 Information requirements 289 Consequential amendments 290 Interpretation 291 Meaning of “ADR” and related terms 292 Other definitions 293 Prohibitions relating to acting as ADR provider 294 Prohibitions relating to charging fees to consumers 295 Exempt ADR providers 296 Applications for accreditation or variation of accreditation 297 Determination of applications for accreditation or variation of accreditation 298 Revocation or suspension of accreditations etc 299 Fees payable by accredited ADR providers 300 ADR fees regulations 301 Accreditation criteria 302 Enforcement notices 303 ADR information regulations 304 ADR information directions 305 Disclosure of ADR information by the Secretary of State 306 Meaning of “ADR information” and other terms in sections 303 to 305 307 Power to provide for other persons to have accreditation functions etc 308 Duty of trader to notify consumer of ADR arrangements etc 309 Consequential amendments etc relating to this Chapter 310 Transitional provision relating to this Chapter 311 Provision of information about competition in connection with motor fuel 312 Penalties for failure to comply with notices under section 311 313 Procedure and appeals 314 Statement of policy on penalties 315 Offences etc 316 Penalties under section 312 and offences under section 315 317 Information sharing 318 Expiry of this Chapter 319 Provision of investigative assistance to overseas regulators 320 Requests for investigative assistance 321 The appropriateness of providing investigative assistance 322 Authorisation of the provision of investigative assistance 323 Notifications in respect of requests for investigative assistance 324 Guidance in connection with investigative assistance 325 Amendments to other legislation 326 Disclosing information overseas 327 Duty of expedition on the CMA and sectoral regulators 328 Offenders assisting investigations and prosecutions: powers of the CMA 329 Removal of limit on the tenure of a chair of the Competition Appeal Tribunal 330 Interpretation 331 Data protection 332 Notices 333 Consultation 334 Financial provision 335 Minor and consequential amendments 336 Power to make further consequential provision 337 Regulations 338 Extent 339 Commencement 340 Short title Schedule 1 Procedure relating to commitments Schedule 2 Mergers: holding of interests and rights Schedule 3 Power of Competition Appeal Tribunal to grant declaratory relief Schedule 4 Relevant and special merger situations Schedule 5 Mergers: fast-track references under sections 22 and 33 of EA 2002 Schedule 6 Mergers of energy network enterprises Schedule 7 Mergers involving newspaper enterprises and foreign powers Schedule 8 Acceptance of undertakings at any stage of a market study or investigation Schedule 9 Final undertakings and orders: power to conduct trials Schedule 10 Civil penalties etc in connection with competition investigations Schedule 11 Civil penalties etc in connection with breaches of remedies Schedule 12 Civil penalties: amendments relating to sectoral regulators Schedule 13 Service and extra-territoriality of notices under CA 1998 and EA 2002 Schedule 14 Orders and regulations under CA 1998 and EA 2002 Schedule 15 Consumer protection enactments Schedule 16 Direct enforcement enactments Schedule 17 Investigatory powers Schedule 18 Part 3: minor and consequential amendments Schedule 19 Part 3: transitional and saving provisions Schedule 20 Commercial practices which are in all circumstances considered unfair Schedule 21 Chapter 1 of Part 4: consequential amendments Schedule 24 Excluded arrangements Schedule 25 Exempt ADR providers Schedule 26 Accreditation criteria Schedule 27 Chapter 4 of Part 4: consequential amendments etc Schedule 28 Provision of investigative assistance to overseas regulators Schedule 29 Duty of expedition on sectoral regulators in respect of their competition functions Schedule 30 Minor and consequential amendments
What to do with it
As published
38 Power to adopt final offer mechanism
(1) Where the CMA considers that the following three conditions are met in relation to a transaction between a designated undertaking and a third party, the CMA may—
(a) require the undertaking, and
(b) invite the third party,
to submit to the CMA terms as to payment (“final offer payment terms”) which the undertaking or, as the case may be, the third party regards as fair and reasonable for the transaction.
(2) The first condition is that the transaction is a transaction in which the designated undertaking would—
(a) provide goods or services to the third party, or
(b) acquire goods or services from, or use goods or services of, the third party.
(3) The second condition is that, by failing to agree fair and reasonable terms as to payment for the transaction, the designated undertaking has breached an enforcement order, other than an interim enforcement order, made in relation to a breach of a conduct requirement of the type permitted by section 20(2)(a) (requirement to trade on fair and reasonable terms).
(4) The third condition is that the CMA could not satisfactorily address the breach within a reasonable time frame by exercising any of its other digital markets functions.
(5) In subsection (1), “transaction” means—
(a) a future transaction, or
(b) the future performance of an ongoing transaction,
whether in accordance with a contract or otherwise.
(6) In sections 39 to 44—
“the designated undertaking” means the undertaking mentioned in subsection (1);
“the transaction” means the transaction mentioned in subsection (1);
“the third party” means the third party mentioned in subsection (1).
Your wording
Your change, as a redline
38 Power to adopt final offer mechanism
(1) Where the CMA considers that the following three conditions are met in relation to a transaction between a designated undertaking and a third party, the CMA may—
(a) require the undertaking, and
(b) invite the third party,
to submit to the CMA terms as to payment (“final offer payment terms”) which the undertaking or, as the case may be, the third party regards as fair and reasonable for the transaction.
(2) The first condition is that the transaction is a transaction in which the designated undertaking would—
(a) provide goods or services to the third party, or
(b) acquire goods or services from, or use goods or services of, the third party.
(3) The second condition is that, by failing to agree fair and reasonable terms as to payment for the transaction, the designated undertaking has breached an enforcement order, other than an interim enforcement order, made in relation to a breach of a conduct requirement of the type permitted by section 20(2)(a) (requirement to trade on fair and reasonable terms).
(4) The third condition is that the CMA could not satisfactorily address the breach within a reasonable time frame by exercising any of its other digital markets functions.
(5) In subsection (1), “transaction” means—
(a) a future transaction, or
(b) the future performance of an ongoing transaction,
whether in accordance with a contract or otherwise.
(6) In sections 39 to 44—
“the designated undertaking” means the undertaking mentioned in subsection (1);
“the transaction” means the transaction mentioned in subsection (1);
“the third party” means the third party mentioned in subsection (1).
A proposal here is not law. Support on Solon is evidence that people want the change; the official route says what it takes to make it law.